Jana Pty Ltd atf Azizi Family Trust & Anthony Azizi v Ezistripdemo Pty Ltd & Sam Sharan [2017] NSWSC 1286

Jana Pty Ltd atf Azizi Family Trust & Anthony Azizi v Ezistripdemo Pty Ltd & Sam Sharan [2017] NSWSC 1286

The absence of a pleading did not count against the Defendants because the Plaintiffs commenced by Summons, the Defendants were not the moving party, and reliance on clause 15.2 could not have taken the Plaintiffs by surprise. Ezistripdemo's costs fell within clause 15.2 because Jana was in default of the Nomination Deed, including clauses 9.2(a) and 9.2(b), and the costs were incurred in enforcing or doing anything in connection with the Deed. Since clause 15.2 conferred the contractual entitlement on Ezistripdemo only, Jana was ordered to pay Ezistripdemo's costs of the proceedings, including the Cross-Claim, on an indemnity basis.

Jurisdiction
Australia
Judgment Date
22 September 2017
Procedural Posture
Equity Expedition List; Costs / On the Papers Determination of Outstanding Costs After Dismissal of the Plaintiffs' Summons
Outcome
Jana ordered to pay Ezistripdemo's costs on an indemnity basis.
Legal Topics
['indemnity Costs' 'contractual Entitlement to Costs' 'costs Following the Event' 'nomination Deed' 'pleading of Contractual Costs Entitlement']
['civil Procedure' 'costs' 'contract'] ['indemnity Costs' 'contractual Entitlement to Costs' 'costs Following the Event' 'nomination Deed' 'pleading of Contractual Costs Entitlement']

Case Brief

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Procedural Posture

Equity Expedition List; Costs / On the Papers Determination of Outstanding Costs After Dismissal of the Plaintiffs' Summons

Legal Issues

  1. 1 ['Whether the Defendants should receive costs on an indemnity basis by reason of clause 15.2 of the Nomination Deed.' 'Whether the Court should refuse indemnity costs because the contractual entitlement under clause 15.2 was not pleaded.' 'Whether the contractual entitlement under clause 15.2 had crystallised, including whether Jana was in default of the Nomination Deed.' 'Whether indemnity costs should be ordered in favour of Mr Sharan as well as Ezistripdemo.']

Ratio Decidendi

The absence of a pleading did not count against the Defendants because the Plaintiffs commenced by Summons, the Defendants were not the moving party, and reliance on clause 15.2 could not have taken the Plaintiffs by surprise. Ezistripdemo's costs fell within clause 15.2 because Jana was in default of the Nomination Deed, including clauses 9.2(a) and 9.2(b), and the costs were incurred in enforcing or doing anything in connection with the Deed. Since clause 15.2 conferred the contractual entitlement on Ezistripdemo only, Jana was ordered to pay Ezistripdemo's costs of the proceedings, including the Cross-Claim, on an indemnity basis.

Court Disposition

Jana ordered to pay Ezistripdemo's costs on an indemnity basis.

Orders

  • ["Jana pay Ezistripdemo's costs of the proceedings, including the Cross-Claim, on an indemnity basis."]