Eastmark Holdings Pty Limited v Kabraji (No 2) [2012] NSWSC 1255

Eastmark Holdings Pty Limited v Kabraji (No 2) [2012] NSWSC 1255

Although the Plaintiff was successful in resisting the notices of motion for summary dismissal and strike out, amendment of the pleadings was necessary and the third Defendant's participation was limited. Balancing these factors, the Plaintiff should receive 80% of its costs for the relevant motions, apportioned 65% to be paid by the first, second and fourth Defendants, and 15% by the third Defendant. No special order is to be made under s 229 Strata Schemes Management Act 1996 at this stage.

Jurisdiction
Australia
Judgment Date
22 October 2012
Procedural Posture
Civil (equity Division) / Interlocutory Application—costs Determination After Notices of Motion for Summary Dismissal and Strike Out Refused
Outcome
Defendants to pay 80% of Plaintiff's costs of the relevant notices of motion, apportioned as ordered; other procedural directions and orders made by consent.
Legal Topics
['costs' 'strike Out Applications' 'summary Dismissal' 'pleadings']
['civil Procedure'] ['costs' 'strike Out Applications' 'summary Dismissal' 'pleadings']

Case Brief

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Procedural Posture

Civil (equity Division) / Interlocutory Application—costs Determination After Notices of Motion for Summary Dismissal and Strike Out Refused

Legal Issues

  1. 1 ['Whether costs should follow the event after unsuccessful notices of motion for summary dismissal and strike out' 'Allocation of costs between multiple defendants with differing involvement' 'Whether costs should be payable forthwith or reserved for final determination' 'Whether to make a special costs order per s 229 Strata Schemes Management Act 1996']

Ratio Decidendi

Although the Plaintiff was successful in resisting the notices of motion for summary dismissal and strike out, amendment of the pleadings was necessary and the third Defendant's participation was limited. Balancing these factors, the Plaintiff should receive 80% of its costs for the relevant motions, apportioned 65% to be paid by the first, second and fourth Defendants, and 15% by the third Defendant. No special order is to be made under s 229 Strata Schemes Management Act 1996 at this stage.

Court Disposition

Defendants to pay 80% of Plaintiff's costs of the relevant notices of motion, apportioned as ordered; other procedural directions and orders made by consent.

Orders

  • ["The Defendants are to pay 80 per cent of the Plaintiff's costs of each of the Notices of Motion filed on 5 April 2012 by the First and Second Defendants and by the Third and Fourth Defendants, including the costs of the hearings on 28 June, 29 June and 4 October, as follows: (a) 65% of the Plaintiff's costs to be...