Bennett v Goodwin [2005] NSWSC 1256

Bennett v Goodwin [2005] NSWSC 1256

Because joinder of Mrs Goodwin senior was obviously necessary to advance the remaining application for an order for sale, the first defendant acted unreasonably in opposing the joinder and should pay the plaintiff's costs of the notice of motion of 14 November 2005. For other costs incurred after judgment on the substantive questions, neither party had acted so unreasonably as to justify a costs order against the other, so the appropriate contingent order was that each party bear his or her own costs if the proceedings were not re-listed and were dismissed.

Jurisdiction
Australia
Judgment Date
06 December 2005
Procedural Posture
Equity Proceedings Concerning Costs and Possible Order for Sale of Property / Ex Tempore Judgment on Costs of an Interlocutory Notice of Motion and Directions for Remaining Proceedings
Outcome
The first defendant was ordered to pay the plaintiff's costs of the notice of motion of 14 November 2005; the proceedings were stood over with liberty to re-list; and, if not re-listed before the specified time, the remaining proceedings would be dismissed and each party would bear his or her own costs subject to...
Legal Topics
['costs of Interlocutory Motion' 'costs Where Proceedings Are Not Decided on the Merits' 'joinder of Party' 'contingent Dismissal of Proceedings']
['procedure' 'costs' 'equity'] ['costs of Interlocutory Motion' 'costs Where Proceedings Are Not Decided on the Merits' 'joinder of Party' 'contingent Dismissal of Proceedings']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Costs and Possible Order for Sale of Property / Ex Tempore Judgment on Costs of an Interlocutory Notice of Motion and Directions for Remaining Proceedings

Legal Issues

  1. 1 ["Whether the first defendant should pay the plaintiff's costs of the notice of motion filed on 14 November 2005 seeking to join Mrs Goodwin senior as a defendant." 'What costs order should be made for the balance of the proceedings where there is a high practical likelihood, but not a certainty, that the remaining issues will not need to be decided.' 'Whether the proceedings should be stood over with provision for automatic dismissal if not re-listed.']

Ratio Decidendi

Because joinder of Mrs Goodwin senior was obviously necessary to advance the remaining application for an order for sale, the first defendant acted unreasonably in opposing the joinder and should pay the plaintiff's costs of the notice of motion of 14 November 2005. For other costs incurred after judgment on the substantive questions, neither party had acted so unreasonably as to justify a costs order against the other, so the appropriate contingent order was that each party bear his or her own costs if the proceedings were not re-listed and were dismissed.

Court Disposition

The first defendant was ordered to pay the plaintiff's costs of the notice of motion of 14 November 2005; the proceedings were stood over with liberty to re-list; and, if not re-listed before the specified time, the remaining proceedings would be dismissed and each party would bear his or her own costs subject to...

Orders

  • ['I order the first defendant to pay the costs of the plaintiff of the Notice of Motion of 14 November 2005.' 'I stand the proceedings over to 9.30 am on 28 February 2006 before me.' 'I reserve liberty to any party to re-list the proceedings before me on 4 days notice to the other.' 'If the proceedings have not been...