Business Finance Pty Ltd (Receiver and Manager Appointed) v Mudge [2021] NSWSC 733

Business Finance Pty Ltd (Receiver and Manager Appointed) v Mudge [2021] NSWSC 733

Although the first defendant failed to establish a serious question to be tried or prima facie case as to the caveatable interests claimed, indemnity costs were not appropriate because the relied-on conduct largely predated the proceedings or was not shown to have substantially increased costs, the first defendant had apparently received legal advice or assistance when the caveats were lodged and later acted without a lawyer, and the Court was not prepared to conclude that he lacked an honest belief based on reasonable grounds that he had a caveatable interest. Costs should follow the event on the ordinary basis. A gross sum order was warranted because there was a real likelihood the...

Jurisdiction
Australia
Judgment Date
22 June 2021
Procedural Posture
Costs Application in Proceedings Under S 74 MA of the Real Property Act 1900 (nsw) for Withdrawal of Caveats / On the Papers After the Court Had Ordered Withdrawal of the Caveats
Outcome
The first defendant was ordered to pay the plaintiffs' costs of the proceedings on the ordinary basis in the specified gross sum of $110,000 including GST.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' 'gross Sum Costs Order' 'caveats' 'caveatable Interest' 'costs Assessment']
['costs' 'equity' 'property Law'] ['indemnity Costs' 'ordinary Basis Costs' 'gross Sum Costs Order' 'caveats' 'caveatable Interest' 'costs Assessment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application in Proceedings Under S 74 MA of the Real Property Act 1900 (nsw) for Withdrawal of Caveats / On the Papers After the Court Had Ordered Withdrawal of the Caveats

Legal Issues

  1. 1 ["Whether the first defendant should pay the plaintiffs' costs of the proceedings on an indemnity basis." 'Whether the Court should make a gross sum costs order instead of requiring assessed costs.' 'What gross sum should be specified if a gross sum costs order is made.']

Ratio Decidendi

Although the first defendant failed to establish a serious question to be tried or prima facie case as to the caveatable interests claimed, indemnity costs were not appropriate because the relied-on conduct largely predated the proceedings or was not shown to have substantially increased costs, the first defendant had apparently received legal advice or assistance when the caveats were lodged and later acted without a lawyer, and the Court was not prepared to conclude that he lacked an honest belief based on reasonable grounds that he had a caveatable interest. Costs should follow the event on the ordinary basis. A gross sum order was warranted because there was a real likelihood the...

Court Disposition

The first defendant was ordered to pay the plaintiffs' costs of the proceedings on the ordinary basis in the specified gross sum of $110,000 including GST.

Orders

  • ["The first defendant pay the plaintiffs' costs of the proceedings." "Instead of assessed costs, the first defendant pay the plaintiffs' costs in the specified gross sum of $110,000 (including GST)."]