Petracca v Boyana Pty Ltd [2006] NSWSC 386

Petracca v Boyana Pty Ltd [2006] NSWSC 386

Both the plaintiffs and the first defendant intended to use Mr Sgro's affidavit of 31 August 2004 and breached the applicable rules by failing to serve it on the third and fourth defendants. The fourth defendant also significantly contributed to the adjournment by serving Mr Deevy's affidavit very late and through inattention to earlier references to the Sgro affidavit. The plaintiffs, first defendant and fourth defendant each played significant contributing roles in causing the adjournment, so they should pay the second and fifth defendants' costs thrown away by the adjournment and bear their own thrown away costs.

Jurisdiction
Australia
Judgment Date
04 May 2006
Procedural Posture
Equity Proceedings Concerning an Aborted Contract for the Sale of a Petrol Station and Convenience Store / Argument About Costs Thrown Away by Adjournment of the Hearing
Outcome
Plaintiffs, first defendant and fourth defendant ordered to pay the second and fifth defendants' costs thrown away by the adjournment and to bear their own thrown away costs; order for costs payable forthwith refused.
Legal Topics
['service of Affidavits' 'joinder of Defendants' 'adjournment Costs' 'uniform Civil Procedure Rules 2005 R 10.2' 'supreme Court Rules 1970 Pt 38 R 7']
['civil Procedure' 'costs' 'equity'] ['service of Affidavits' 'joinder of Defendants' 'adjournment Costs' 'uniform Civil Procedure Rules 2005 R 10.2' 'supreme Court Rules 1970 Pt 38 R 7']

Case Brief

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Procedural Posture

Equity Proceedings Concerning an Aborted Contract for the Sale of a Petrol Station and Convenience Store / Argument About Costs Thrown Away by Adjournment of the Hearing

Legal Issues

  1. 1 ['Which parties were obliged to serve the third and fourth defendants with the affidavit of Mr Sgro sworn 31 August 2004 after their joinder.' 'Whether the plaintiffs, the first defendant, and the fourth defendant contributed to the adjournment of the hearing.' 'Who should bear the costs thrown away by reason of the adjournment.' 'Whether the costs payable to the second and fifth defendants should be payable forthwith.']

Ratio Decidendi

Both the plaintiffs and the first defendant intended to use Mr Sgro's affidavit of 31 August 2004 and breached the applicable rules by failing to serve it on the third and fourth defendants. The fourth defendant also significantly contributed to the adjournment by serving Mr Deevy's affidavit very late and through inattention to earlier references to the Sgro affidavit. The plaintiffs, first defendant and fourth defendant each played significant contributing roles in causing the adjournment, so they should pay the second and fifth defendants' costs thrown away by the adjournment and bear their own thrown away costs.

Court Disposition

Plaintiffs, first defendant and fourth defendant ordered to pay the second and fifth defendants' costs thrown away by the adjournment and to bear their own thrown away costs; order for costs payable forthwith refused.

Orders

  • ['Each of the plaintiffs, the first defendant and the fourth defendant is to pay the costs of the second and fifth defendants thrown away by reason of the adjournment.' 'Each of the plaintiffs, the first defendant and the fourth defendant is to bear their own costs thrown away by reason of the adjournment.' 'The...