Tanilba Beach Pty Limited v JR & JB Pty Limited (No 2) [2018] NSWSC 1250

Tanilba Beach Pty Limited v JR & JB Pty Limited (No 2) [2018] NSWSC 1250

Although Mr Burrell served his bill of costs seven days late, the outstanding costs assessments and near-equivalent mutual debts meant that issuing a writ of execution or possession for the full amount claimed by the Champion Interests would be unjust; the Court therefore declined to issue the writ and dismissed the notice of motion.

Jurisdiction
Australia
Judgment Date
06 August 2018
Procedural Posture
Procedural and Other Ruling in the Common Law Jurisdiction / Notice of Motion Seeking Leave to Issue a Writ for the Levy of Property, Writ of Execution or Writ of Possession
Outcome
The Court declined to issue the writ of execution or writ of possession, dismissed the notice of motion, and ordered the second defendant to pay the plaintiff's costs of the day with no other order as to costs of the notice of motion.
Legal Topics
['writ of Execution' 'writ of Possession' 'outstanding Costs Orders' 'set Off' 'costs Assessment']
['civil Procedure' 'enforcement of Judgments' 'costs'] ['writ of Execution' 'writ of Possession' 'outstanding Costs Orders' 'set Off' 'costs Assessment']

Case Brief

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Procedural Posture

Procedural and Other Ruling in the Common Law Jurisdiction / Notice of Motion Seeking Leave to Issue a Writ for the Levy of Property, Writ of Execution or Writ of Possession

Legal Issues

  1. 1 ["Whether a writ of execution or writ of possession should issue despite the late service of Mr Burrell's bill of costs." 'Whether issuing a writ for the full amount claimed would be unjust given outstanding costs assessments and potential set-off between amounts owed by the parties.']

Ratio Decidendi

Although Mr Burrell served his bill of costs seven days late, the outstanding costs assessments and near-equivalent mutual debts meant that issuing a writ of execution or possession for the full amount claimed by the Champion Interests would be unjust; the Court therefore declined to issue the writ and dismissed the notice of motion.

Court Disposition

The Court declined to issue the writ of execution or writ of possession, dismissed the notice of motion, and ordered the second defendant to pay the plaintiff's costs of the day with no other order as to costs of the notice of motion.

Orders

  • ['I decline to issue the writ of execution or a writ of possession.' 'The notice of motion filed 20 December 2018 is dismissed.' "The second defendant is to pay the plaintiff's costs of today otherwise there is no order as to costs as to the notice of motion."]