Bendigo and Adelaide Bank Limited v Benedetta Russo and Sid Russo; ; Bendigo and Adelaide Bank Limited v Sid Russo; (No. 2) [2016] NSWSC 1712

Bendigo and Adelaide Bank Limited v Benedetta Russo and Sid Russo; ; Bendigo and Adelaide Bank Limited v Sid Russo; (No. 2) [2016] NSWSC 1712

The defendants were successful in setting aside the default judgments, and any delay and expense was properly viewed as emanating from the plaintiff's decision to oppose their applications. Even if the failure to file defences were misconduct, it did not justify departing from the general rule that costs follow the event, so the plaintiff was ordered to pay the defendants' costs of the notices of motion.

Jurisdiction
Australia
Judgment Date
02 December 2016
Procedural Posture
Costs / Written Submissions on Costs After Orders Setting Aside Default Judgments
Outcome
Plaintiff ordered to pay the defendants' costs of the notices of motion.
Legal Topics
['default Judgment' 'costs Following the Event' 'setting Aside Default Judgment' 'costs Discretion']
['civil Procedure' 'costs'] ['default Judgment' 'costs Following the Event' 'setting Aside Default Judgment' 'costs Discretion']

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Procedural Posture

Costs / Written Submissions on Costs After Orders Setting Aside Default Judgments

Legal Issues

  1. 1 ['Whether the successful defendants on notices of motion to set aside default judgments should receive their costs.' "Whether the defendants' failure to file defences within the prescribed 28 day period constituted misconduct justifying departure from the general rule that costs follow the event." "Whether the plaintiff should pay the defendants' costs after unsuccessfully opposing the applications to set aside default judgments."]

Ratio Decidendi

The defendants were successful in setting aside the default judgments, and any delay and expense was properly viewed as emanating from the plaintiff's decision to oppose their applications. Even if the failure to file defences were misconduct, it did not justify departing from the general rule that costs follow the event, so the plaintiff was ordered to pay the defendants' costs of the notices of motion.

Court Disposition

Plaintiff ordered to pay the defendants' costs of the notices of motion.

Orders

  • ['In proceedings 2015/337145 the plaintiff is to pay the costs of the first and second defendants of the notice of motion, as agreed or assessed.' 'In proceedings 2015/337116 the plaintiff is to pay the costs of the defendant of the notice of motion, as agreed or assessed.']