Cyrene Holdings Pty Ltd v Ambermill Pty Ltd & 4 Ors [1999] NSWSC 1199

Cyrene Holdings Pty Ltd v Ambermill Pty Ltd & 4 Ors [1999] NSWSC 1199

Clause 11 contemplated successful enforcement proceedings. The word "enforcing" in Clause 11(iii) required proceedings in which the plaintiff's rights were enforced, not merely proceedings in which enforcement was sought. Because the plaintiff's specific performance application was dismissed, the proceedings were not within Clause 11 and the plaintiff was not entitled to indemnity costs; instead it had to pay the third defendant's costs of the application.

Jurisdiction
Australia
Judgment Date
08 December 1999
Procedural Posture
Application for Costs Following Dismissal of a Notice of Motion for Specific Performance / Further Argument on Costs After Earlier Costs Order Was Vacated
Outcome
Application refused. Plaintiff ordered to pay the third defendant's costs of the motion.
Legal Topics
['indemnity Costs' 'settlement Deed' 'consent Orders' 'specific Performance' 'enforcement Proceedings']
['equity' 'civil Procedure' 'costs'] ['indemnity Costs' 'settlement Deed' 'consent Orders' 'specific Performance' 'enforcement Proceedings']

Case Brief

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Procedural Posture

Application for Costs Following Dismissal of a Notice of Motion for Specific Performance / Further Argument on Costs After Earlier Costs Order Was Vacated

Legal Issues

  1. 1 ['Whether Clause 11 of the Deed entitled the plaintiff to a costs order on an indemnity basis notwithstanding that its claim for specific performance was dismissed.' "Whether the dismissed specific performance proceedings were proceedings enforcing the plaintiff's rights pursuant to the Deed or consent orders."]

Ratio Decidendi

Clause 11 contemplated successful enforcement proceedings. The word "enforcing" in Clause 11(iii) required proceedings in which the plaintiff's rights were enforced, not merely proceedings in which enforcement was sought. Because the plaintiff's specific performance application was dismissed, the proceedings were not within Clause 11 and the plaintiff was not entitled to indemnity costs; instead it had to pay the third defendant's costs of the application.

Court Disposition

Application refused. Plaintiff ordered to pay the third defendant's costs of the motion.

Orders

  • ["The plaintiff pay the defendant's costs of the application."]