NSW Trustee and Guardian v Wardy (No. 2) [2022] NSWSC 9

NSW Trustee and Guardian v Wardy (No. 2) [2022] NSWSC 9

Mr Wardy, as the unsuccessful sole protagonist, should bear the costs of the Cross-Claim; procedural fairness requires setting aside Declaration (3) and allowing both parties to reargue rental compensation, as the parties were not heard on those issues in the prior judgment.

Parties
Plaintiff/cross Defendant: NSW Trustee and Guardian; Defendant/cross Claimant: John Wardy
Jurisdiction
Australia
Judgment Date
10 January 2022
Procedural Posture
Civil / Post Trial Consequential Orders
Outcome
Orders made as to costs and setting aside Declaration (3); matters relating to rental compensation and other issues adjourned for further determination.
Legal Topics
Costs, Substitution of Property, Procedural Fairness, Issue Estoppel
Equity Probate and Administration Costs Substitution of Property Procedural Fairness Issue Estoppel

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Parties

NSW Trustee and Guardian

Plaintiff/cross Defendant

John Wardy

Defendant/cross Claimant

Procedural Posture

Civil / Post Trial Consequential Orders

Legal Issues

  1. 1 Who should bear the costs of the Cross-Claim?
  2. 2 Should Declaration (3) of the 2020 judgment be set aside and the limitation on rental compensation reargued?

Ratio Decidendi

Mr Wardy, as the unsuccessful sole protagonist, should bear the costs of the Cross-Claim; procedural fairness requires setting aside Declaration (3) and allowing both parties to reargue rental compensation, as the parties were not heard on those issues in the prior judgment.

Court Disposition

Orders made as to costs and setting aside Declaration (3); matters relating to rental compensation and other issues adjourned for further determination.

Orders

  • Order that the defendant/cross-claimant pay the plaintiff/cross-defendant's costs of the Cross-Claim filed on 6 November 2017 on the ordinary basis.
  • Set aside Declaration (3) of the declarations made on 29 January 2020.