Bale v Kimberley Developments Pty Ltd & Ors [2023] NSWSC 1219

Bale v Kimberley Developments Pty Ltd & Ors [2023] NSWSC 1219

The plaintiff was entitled to costs because, had the unresolved motion been contested, she would almost certainly have obtained substantially the relief ultimately agreed, and the defendants acted unreasonably by failing to respond for 18 days and then creating an urgent roadblock to settlement without proposing a workable mechanism. The March 2023 consent orders did not preclude a costs order because they did not objectively contemplate costs generated by spontaneous unreasonable conduct occurring six months later and the present costs arose from that conduct and impediments to execution of the conveyance rather than from the earlier trial or appeal costs. Indemnity costs were refused...

Jurisdiction
Australia
Judgment Date
13 October 2023
Procedural Posture
Costs Application in Equity Duty List Proceedings / Determination of Costs Following Resolution of the Plaintiff's Motion for Removal and Reimposition of a Caveat to Enable Settlement of a Real Property Transaction
Outcome
Defendants ordered to pay the plaintiff's costs of the motion on the ordinary basis, fixed as a specified gross sum of $7,700.
Legal Topics
['costs Follow the Event' 'ordinary Costs' 'indemnity Costs' 'gross Sum Costs Order' 'caveat Removal' 'implementation of Final Orders' 'consent Orders Concerning Costs']
['civil Procedure' 'costs' 'equity' 'real Property'] ['costs Follow the Event' 'ordinary Costs' 'indemnity Costs' 'gross Sum Costs Order' 'caveat Removal' 'implementation of Final Orders' 'consent Orders Concerning Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application in Equity Duty List Proceedings / Determination of Costs Following Resolution of the Plaintiff's Motion for Removal and Reimposition of a Caveat to Enable Settlement of a Real Property Transaction

Legal Issues

  1. 1 ["Whether the Court should make a costs order where the plaintiff's motion resolved by agreement except as to costs." 'Whether the defendants acted unreasonably in circumstances precipitating the urgent application concerning removal of the caveat.' "Whether consent orders made on 23 March 2023 precluded a costs order for the plaintiff's later motion." 'Whether any costs order should be on the indemnity basis.' 'Whether the Court should fix a specified gross sum instead of assessed costs.']

Ratio Decidendi

The plaintiff was entitled to costs because, had the unresolved motion been contested, she would almost certainly have obtained substantially the relief ultimately agreed, and the defendants acted unreasonably by failing to respond for 18 days and then creating an urgent roadblock to settlement without proposing a workable mechanism. The March 2023 consent orders did not preclude a costs order because they did not objectively contemplate costs generated by spontaneous unreasonable conduct occurring six months later and the present costs arose from that conduct and impediments to execution of the conveyance rather than from the earlier trial or appeal costs. Indemnity costs were refused...

Court Disposition

Defendants ordered to pay the plaintiff's costs of the motion on the ordinary basis, fixed as a specified gross sum of $7,700.

Orders

  • ["Order that the defendants pay the plaintiff's costs of the re-listing of these proceedings on 7 September 2023 on the ordinary basis." 'In respect of the costs the subject of Order (1), the Court fixes and orders the payment of a specified gross sum of $7,700 instead of assessed costs, pursuant to its powers under...