Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 5) [2018] NSWSC 1935

Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 5) [2018] NSWSC 1935

There was no hearing or determination on the merits of the plaintiff's motion. The court was not satisfied that the plaintiff's conduct amounted to a capitulation warranting an order for costs. The commencement of assessment proceedings by the defendants and the bank's increased offer affected the appropriateness of...

Source-derived case information.

Parties
Plaintiff: Commonwealth Bank of Australia; First Defendant: Daleport Pty Ltd (in receivership); Second Defendant: Alexander Raymond Walton
Jurisdiction
Australia
Judgment Date
19 July 2018
Procedural Posture
Application in Ongoing Proceedings / Post Interlocutory; Costs and Other Orders Following Previous Interlocutory Applications
Outcome
The plaintiff's notice of motion dated 27 June 2018 is dismissed with no order as to costs. The plaintiff is ordered to pay $100,000 within 28 days towards the costs previously ordered on 11 May 2018.
Legal Topics
Costs Orders, Gross Sum Costs Order, Variation of Costs Order, Interlocutory Applications
Civil Procedure Costs Orders Gross Sum Costs Order Variation of Costs Order Interlocutory Applications

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Parties

Commonwealth Bank of Australia

Plaintiff

Daleport Pty Ltd (in receivership)

First Defendant

Alexander Raymond Walton

Second Defendant

Procedural Posture

Application in Ongoing Proceedings / Post Interlocutory; Costs and Other Orders Following Previous Interlocutory Applications

Legal Issues

  1. 1 Whether the plaintiff's notice of motion dated 27 June 2018 should be dismissed
  2. 2 Whether the costs order of 11 May 2018 should be varied or quantified by gross sum
  3. 3 Whether the plaintiff's actions constituted a capitulation affecting the disposition of costs regarding its motion

Ratio Decidendi

There was no hearing or determination on the merits of the plaintiff's motion. The court was not satisfied that the plaintiff's conduct amounted to a capitulation warranting an order for costs. The commencement of assessment proceedings by the defendants and the bank's increased offer affected the appropriateness of a gross sum order or a variation. It was appropriate for part payment of the earlier ordered costs to be made forthwith.

Court Disposition

The plaintiff's notice of motion dated 27 June 2018 is dismissed with no order as to costs. The plaintiff is ordered to pay $100,000 within 28 days towards the costs previously ordered on 11 May 2018.

Orders

  • The notice of motion dated 27 June 2018 be dismissed with no order as to costs.
  • The plaintiff pay, by way of part payment, the sum of $100,000 within 28 days towards the costs ordered by the court on 11 May 2018.