El-Saeidy v NSW Land and Housing Corporation [2011] NSWSC 447

El-Saeidy v NSW Land and Housing Corporation [2011] NSWSC 447

Although the first defendant was prima facie entitled to costs because the summons was dismissed, the proceedings ended because a supervening event, the plaintiff's acquittal, removed the basis for the CTTT proceedings and the need to determine the summons. It could not be said that either party was almost certain to have succeeded, and resolving the parties' competing contentions would require an inappropriate trial on costs. The proper exercise of the costs discretion was therefore that each party bear its own costs, except for the costs of 15 February 2010 already ordered to be paid by the plaintiff.

Jurisdiction
Australia
Judgment Date
19 May 2011
Procedural Posture
Common Law Administrative Law Proceedings; Costs Application / Determination of Costs After the Summons Was Dismissed Pursuant to UCPR 29.8 on the Plaintiff's Application
Outcome
Each party is to bear his or its own costs of the summons filed in this court on 4 December 2009 save for the costs in respect of 15 February 2010 which are to be paid by the plaintiff.
Legal Topics
['dismissal of Proceedings' 'costs Discretion' 'costs Following the Event' 'indemnity Costs' 'supervening Event']
['administrative Law' 'civil Procedure' 'costs' 'tenancy'] ['dismissal of Proceedings' 'costs Discretion' 'costs Following the Event' 'indemnity Costs' 'supervening Event']

Case Brief

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Procedural Posture

Common Law Administrative Law Proceedings; Costs Application / Determination of Costs After the Summons Was Dismissed Pursuant to UCPR 29.8 on the Plaintiff's Application

Legal Issues

  1. 1 ["Whether the normal costs consequences under UCPR 42.1 or UCPR 42.20(1) should apply after dismissal of the plaintiff's summons" 'Whether the Court should exercise its discretion under s 98 of the Civil Procedure Act to order each party to bear its own costs or to award costs to either party' 'Whether the plaintiff should receive costs on an indemnity basis']

Ratio Decidendi

Although the first defendant was prima facie entitled to costs because the summons was dismissed, the proceedings ended because a supervening event, the plaintiff's acquittal, removed the basis for the CTTT proceedings and the need to determine the summons. It could not be said that either party was almost certain to have succeeded, and resolving the parties' competing contentions would require an inappropriate trial on costs. The proper exercise of the costs discretion was therefore that each party bear its own costs, except for the costs of 15 February 2010 already ordered to be paid by the plaintiff.

Court Disposition

Each party is to bear his or its own costs of the summons filed in this court on 4 December 2009 save for the costs in respect of 15 February 2010 which are to be paid by the plaintiff.

Orders

  • ['Each party is to bear his or its own costs of the summons filed in this court on 4 December 2009 save for the costs in respect of 15 February 2010 which are to be paid by the plaintiff.']