Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 5) [2023] NSWSC 1040

Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 5) [2023] NSWSC 1040

The costs orders should not be set aside because the final orders process was to be determined on the papers under a timetable agreed by counsel for Mr Kazzi, he failed to comply with that timetable after instructing his solicitors to cease work at the critical time, and that amounted in effect to a choice not to participate rather than an absence justifying relief under UCPR r 36.16(2)(b). His explanation was unsatisfactory, the Owners should not be further vexed, and the proposed argument about counsel's concession would require an inappropriate investigation of contested matters at this stage.

Jurisdiction
Australia
Judgment Date
30 August 2023
Procedural Posture
Equity Technology and Construction List; Consequential Orders / Notice of Motion by Mr Kazzi to Set Aside Costs Orders Made on 15 August 2023, Determined on the Papers
Outcome
Application to set aside costs orders dismissed with costs.
Legal Topics
['setting Aside or Varying Orders' 'orders Made in the Absence of a Party' 'costs Orders' 'solicitor Instructions to Cease Work' "counsel's Authority to Make Admissions"]
['civil Procedure' 'costs' 'technology and Construction'] ['setting Aside or Varying Orders' 'orders Made in the Absence of a Party' 'costs Orders' 'solicitor Instructions to Cease Work' "counsel's Authority to Make Admissions"]

Case Brief

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Procedural Posture

Equity Technology and Construction List; Consequential Orders / Notice of Motion by Mr Kazzi to Set Aside Costs Orders Made on 15 August 2023, Determined on the Papers

Legal Issues

  1. 1 ["Whether orders 5 and 9 made on 15 August 2023 requiring Mr Kazzi to pay the Owners' costs of the Cross-Claim and interest on those costs should be set aside." "Whether the costs orders were made in Mr Kazzi's absence for the purposes of UCPR r 36.16(2)(b)." "Whether Mr Kazzi's explanation for non-compliance with the agreed timetable for submissions warranted the exercise of discretion to set aside the orders." "Whether the proposed contention that the Owners' success arose from a concession by senior counsel should be investigated at this stage of the proceedings."]

Ratio Decidendi

The costs orders should not be set aside because the final orders process was to be determined on the papers under a timetable agreed by counsel for Mr Kazzi, he failed to comply with that timetable after instructing his solicitors to cease work at the critical time, and that amounted in effect to a choice not to participate rather than an absence justifying relief under UCPR r 36.16(2)(b). His explanation was unsatisfactory, the Owners should not be further vexed, and the proposed argument about counsel's concession would require an inappropriate investigation of contested matters at this stage.

Court Disposition

Application to set aside costs orders dismissed with costs.

Orders

  • ["The plaintiff's/cross-defendants' Notice of Motion of 28 August 2023 is dismissed with costs."]