Fabcot Pty Ltd v Tannous [2011] NSWSC 1611

Fabcot Pty Ltd v Tannous [2011] NSWSC 1611

The plaintiff was forced to bring the proceedings because of the first and second defendants' primary application, obtained the substantive relief it sought, and the first and second defendants' cross-claim was abandoned. Although the plaintiff relied on legislative provisions introduced after commencement, that did not amount to an abandonment of the plaintiff's claim that the first and second defendants had no interest in the land; rather, the legislative effect made the earlier adverse possession contest unnecessary. There was therefore no reason to depart from the usual consequence that the successful plaintiff receive its costs, and the late affidavits did not justify awarding the...

Jurisdiction
Australia
Judgment Date
17 November 2011
Procedural Posture
Equity Division Proceedings Concerning Interests in Land and Adverse Possession, With Consequential Costs Orders / Consequential Orders After the First and Second Defendants Accepted Dismissal of Their Cross Claim and Consented to Substantive Relief, Leaving Costs in Dispute
Outcome
The first and second defendants were ordered to pay the plaintiff's costs of the proceedings, fixed in a reduced amount of $60,000.
Legal Topics
['costs Follow the Event' 'adverse Possession' 'effect of Legislative Amendment on Asserted Land Interest' 'late Service of Affidavit Evidence' 'primary Application to Registrar General']
['practice and Procedure' 'costs' 'real Property'] ['costs Follow the Event' 'adverse Possession' 'effect of Legislative Amendment on Asserted Land Interest' 'late Service of Affidavit Evidence' 'primary Application to Registrar General']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Interests in Land and Adverse Possession, With Consequential Costs Orders / Consequential Orders After the First and Second Defendants Accepted Dismissal of Their Cross Claim and Consented to Substantive Relief, Leaving Costs in Dispute

Legal Issues

  1. 1 ["Whether the first and second defendants should pay the plaintiff's costs after the plaintiff obtained the relief sought and the cross-claim was abandoned." "Whether the plaintiff should pay the first and second defendants' costs because of late service of affidavits." "Whether there had been a determination of the plaintiff's claim despite the introduction of a new legislative basis for relief." 'Whether the plaintiff had abandoned its original case by relying on amendments to the Real Property Act 1900 (NSW).']

Ratio Decidendi

The plaintiff was forced to bring the proceedings because of the first and second defendants' primary application, obtained the substantive relief it sought, and the first and second defendants' cross-claim was abandoned. Although the plaintiff relied on legislative provisions introduced after commencement, that did not amount to an abandonment of the plaintiff's claim that the first and second defendants had no interest in the land; rather, the legislative effect made the earlier adverse possession contest unnecessary. There was therefore no reason to depart from the usual consequence that the successful plaintiff receive its costs, and the late affidavits did not justify awarding the...

Court Disposition

The first and second defendants were ordered to pay the plaintiff's costs of the proceedings, fixed in a reduced amount of $60,000.

Orders

  • ['The plaintiff was entitled to the declaration it sought that the first and second defendants did not have an interest in the land.' "The plaintiff was entitled to the consented orders, including vacant possession before 24 November 2011, restraint on the Registrar-General processing or giving effect to the first...