Watson v Watson [2021] NSWSC 1544

Watson v Watson [2021] NSWSC 1544

There had been no determination on the merits, the defendant's motion to set aside the 19 February 2021 orders was not almost certain to fail because it was at least arguable that judgment was entered irregularly, and the plaintiff's agreed $9,859.60 adjustment did not justify departing from the usual section 66G costs approach. In the circumstances, the appropriate exercise of discretion was for each party's costs of the proceedings to be paid from the balance of the sale proceeds referred to in order 5 made on 8 November 2021 before any distribution to the parties.

Jurisdiction
Australia
Judgment Date
30 November 2021
Procedural Posture
Application for Sale of Co Owned Property Under Section 66 G of the Conveyancing Act 1919 (nsw) / Costs Determination After Settlement by Consent Save as to Costs
Outcome
Order 5 made on 8 November 2021 varied so that each party's costs of the proceedings be paid out of the balance of the proceeds of sale before distribution to the parties.
Legal Topics
['section 66 G Application' 'co Owned Property' 'costs After Settlement' 'statutory Trustees for Sale' 'setting Aside Default Judgment']
['costs' 'equity' 'real Property'] ['section 66 G Application' 'co Owned Property' 'costs After Settlement' 'statutory Trustees for Sale' 'setting Aside Default Judgment']

Case Brief

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Procedural Posture

Application for Sale of Co Owned Property Under Section 66 G of the Conveyancing Act 1919 (nsw) / Costs Determination After Settlement by Consent Save as to Costs

Legal Issues

  1. 1 ["Whether the parties' costs should be paid out of the proceeds of sale of the proposed subdivision lot." 'Whether there was reason to depart from the usual position that costs of a section 66G application are taken out of the proceeds of sale of the co-owned property.' "Whether the plaintiff's consent to set aside the 19 February 2021 orders was an indulgence to the defendant justifying a different costs order." "Whether the plaintiff's agreed adjustment of $9,859.60 justified departing from the usual costs position."]

Ratio Decidendi

There had been no determination on the merits, the defendant's motion to set aside the 19 February 2021 orders was not almost certain to fail because it was at least arguable that judgment was entered irregularly, and the plaintiff's agreed $9,859.60 adjustment did not justify departing from the usual section 66G costs approach. In the circumstances, the appropriate exercise of discretion was for each party's costs of the proceedings to be paid from the balance of the sale proceeds referred to in order 5 made on 8 November 2021 before any distribution to the parties.

Court Disposition

Order 5 made on 8 November 2021 varied so that each party's costs of the proceedings be paid out of the balance of the proceeds of sale before distribution to the parties.

Orders

  • ["Each party's costs of the proceedings are to be paid out of the balance of the proceeds of sale as referred to in order 5 made on 8 November 2021, prior to any distribution to them of such proceeds." 'Order 5 made on 8 November 2021 is varied accordingly.']