711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd (No 2) [2016] NSWSC 1754

711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd (No 2) [2016] NSWSC 1754

The plaintiff was refused permission to vacate the dismissal order because it had litigated the Summons solely as an attack on Mr Bluth's determination, that attack had failed, and finality weighed against allowing an about-face to seek relief predicated on the determination's validity when issues concerning specific performance could be litigated on the defendants' Cross-Claim. The defendants were entitled to costs because they succeeded on the discrete issue raised by the Summons. Costs incurred on or after 1 June 2016 were ordered on an indemnity basis because the plaintiff unreasonably failed to argue all issues within the separate question before Stevenson J, causing unnecessary...

Jurisdiction
Australia
Judgment Date
08 December 2016
Procedural Posture
Equity Commercial List; Costs and Application to Vacate Order Dismissing Summons / After Judgment Dismissing the Plaintiff's Summons and Dismissing an Application to Stay the Defendants' Cross Claim; Hearing on Costs and Plaintiff's Application to Vacate the Dismissal Order
Outcome
Application to vacate the order dismissing the Summons refused; costs ordered in favour of the defendants.
Legal Topics
['reopening or Vacating Orders' 'indemnity Costs' 'expert Determination' 'specific Performance' 'commercial List Proceedings']
['civil Procedure' 'costs' 'equity' 'commercial Law'] ['reopening or Vacating Orders' 'indemnity Costs' 'expert Determination' 'specific Performance' 'commercial List Proceedings']

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Procedural Posture

Equity Commercial List; Costs and Application to Vacate Order Dismissing Summons / After Judgment Dismissing the Plaintiff's Summons and Dismissing an Application to Stay the Defendants' Cross Claim; Hearing on Costs and Plaintiff's Application to Vacate the Dismissal Order

Legal Issues

  1. 1 ["Whether the order dismissing the plaintiff's Summons should be vacated so that the plaintiff could seek leave to amend the Summons to claim specific performance of the Deed of Agreement for Lease on the basis of Mr Bluth's expert determination." 'Whether the defendants should obtain costs of the Summons before determination of the Cross-Claim.' "Whether the defendants' costs should be payable on an indemnity basis and forthwith."]

Ratio Decidendi

The plaintiff was refused permission to vacate the dismissal order because it had litigated the Summons solely as an attack on Mr Bluth's determination, that attack had failed, and finality weighed against allowing an about-face to seek relief predicated on the determination's validity when issues concerning specific performance could be litigated on the defendants' Cross-Claim. The defendants were entitled to costs because they succeeded on the discrete issue raised by the Summons. Costs incurred on or after 1 June 2016 were ordered on an indemnity basis because the plaintiff unreasonably failed to argue all issues within the separate question before Stevenson J, causing unnecessary...

Court Disposition

Application to vacate the order dismissing the Summons refused; costs ordered in favour of the defendants.

Orders

  • ["The plaintiff pay the defendants' costs of the Summons, other than the costs of the hearing of the separate determination before Stevenson J, with such costs incurred on or after 1 June 2016 to be payable on an indemnity basis." 'The costs the subject of Order 1 to be payable forthwith.']