Ageist Pty Ltd v Samuel M Holdings Pty Ltd (Receiver and Manager Appointed) (No 2) [2021] NSWSC 1216

Ageist Pty Ltd v Samuel M Holdings Pty Ltd (Receiver and Manager Appointed) (No 2) [2021] NSWSC 1216

Mr Murabito and the second and third defendants engaged in sufficient delinquency and unreasonableness to justify indemnity costs because the SMHPL and Stojcevski Caveats were lodged late, without reasonable basis, in circumstances indicating an attempt to delay settlement of the Property, and the purported defences were bound to fail. The adjournment costs should also be paid because the adjournment was an indulgence granted after non-compliance with the Court's timetable, but a lump sum order was refused because there was no affidavit evidence or other documents establishing a logical, fair and reasonable basis for the amount claimed.

Jurisdiction
Australia
Judgment Date
27 September 2021
Procedural Posture
Costs Application Following Application to Remove Caveats / On the Papers
Outcome
The plaintiff obtained an indemnity costs order against the second and third defendants and Mr Steven Murabito, including costs thrown away by reason of the adjournment; the requested lump sum costs order was not made.
Legal Topics
['indemnity Costs' 'costs Thrown Away by Adjournment' 'caveats' 'power of Sale' 'self Represented Litigants']
['costs' 'property Law' 'civil Procedure' 'equity'] ['indemnity Costs' 'costs Thrown Away by Adjournment' 'caveats' 'power of Sale' 'self Represented Litigants']

Case Brief

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Procedural Posture

Costs Application Following Application to Remove Caveats / On the Papers

Legal Issues

  1. 1 ["Whether the plaintiff's costs of its application to remove caveats should be paid on an indemnity basis." 'Whether the plaintiff should receive costs thrown away by reason of the adjournment of the hearing on 29 July 2021.' 'Whether a lump sum costs order of $4,750 plus GST should be made for the costs thrown away.']

Ratio Decidendi

Mr Murabito and the second and third defendants engaged in sufficient delinquency and unreasonableness to justify indemnity costs because the SMHPL and Stojcevski Caveats were lodged late, without reasonable basis, in circumstances indicating an attempt to delay settlement of the Property, and the purported defences were bound to fail. The adjournment costs should also be paid because the adjournment was an indulgence granted after non-compliance with the Court's timetable, but a lump sum order was refused because there was no affidavit evidence or other documents establishing a logical, fair and reasonable basis for the amount claimed.

Court Disposition

The plaintiff obtained an indemnity costs order against the second and third defendants and Mr Steven Murabito, including costs thrown away by reason of the adjournment; the requested lump sum costs order was not made.

Orders

  • ["The plaintiff's costs of its application to remove caveats AR256711 and AR265339 in respect of the land comprised in folio identifier 8/12/DP8146 and for the relief sought in paragraph 6 of the Amended Summons filed on 23 July 2021, including its costs thrown away by reason of the adjournment of the hearing on 29...