Burdel Investments Pty Ltd v Burchett [2001] NSWSC 600

Burdel Investments Pty Ltd v Burchett [2001] NSWSC 600

Because the subject matter of the proceedings had effectively disappeared after the referee's report and further litigation would serve no purpose apart from costs, the Court would not hear a contested application to adopt the report merely to assist the costs decision. The objections to adoption raised arguable legal issues, so the plaintiff could not be treated as having succeeded. Since both sides' conduct in maintaining their positions was not shown to be unreasonable, the general rule for proceedings not pursued to finality applied and there should be no order as to costs.

Jurisdiction
Australia
Judgment Date
18 July 2001
Procedural Posture
Equity Proceedings Involving a Motion to Adopt a Referee's Report and an Application for Costs / Judgment on Plaintiff's Motion for Adoption of Referee's Report and Application for Costs After the Subject Matter of the Proceedings Was Resolved
Outcome
Application for adoption of the referee's report refused; no order as to the costs of the proceedings.
Legal Topics
['reference to Referee' "adoption of Referee's Report" 'costs Where Proceedings Do Not Proceed to Finality' 'misleading or Deceptive Conduct' 'declaratory Relief']
['civil Procedure' 'costs' 'equity' 'fair Trading'] ['reference to Referee' "adoption of Referee's Report" 'costs Where Proceedings Do Not Proceed to Finality' 'misleading or Deceptive Conduct' 'declaratory Relief']

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Procedural Posture

Equity Proceedings Involving a Motion to Adopt a Referee's Report and an Application for Costs / Judgment on Plaintiff's Motion for Adoption of Referee's Report and Application for Costs After the Subject Matter of the Proceedings Was Resolved

Legal Issues

  1. 1 ["Whether the Court should adopt the referee's report after the subject matter of the proceedings had effectively evaporated and the litigation had no further purpose apart from costs." "Whether the plaintiff should receive its costs of the proceedings despite the refusal to adopt the referee's report and the effective abandonment of further prosecution of the proceedings." 'Whether the usual rule that there be no order as to costs where reasonably conducted proceedings become futile or are settled should be departed from.']

Ratio Decidendi

Because the subject matter of the proceedings had effectively disappeared after the referee's report and further litigation would serve no purpose apart from costs, the Court would not hear a contested application to adopt the report merely to assist the costs decision. The objections to adoption raised arguable legal issues, so the plaintiff could not be treated as having succeeded. Since both sides' conduct in maintaining their positions was not shown to be unreasonable, the general rule for proceedings not pursued to finality applied and there should be no order as to costs.

Court Disposition

Application for adoption of the referee's report refused; no order as to the costs of the proceedings.

Orders

  • ["Application for adoption of referee's report refused." 'No order as to the costs of the proceedings.']