Helou v M & J Enterprises & Ors (No 2) [2016] NSWSC 1609

Helou v M & J Enterprises & Ors (No 2) [2016] NSWSC 1609

The Court was not persuaded that the general costs rules should be displaced. It was not clear that the defendants' motion dismissed by Harrison AsJ involved forensic delinquency, and the reservation of costs suggested the ultimate conclusion of the litigation hung in the balance. Although judgment for possession had been entered for the plaintiff, it was by consent and did not make the final outcome predictable because the defendants' cross-claim remained live and did not appear devoid of merit. The Court was satisfied that the lump sum orders sought would stultify the defendants' prosecution of their cross-claim, and that the interests of justice favoured applying the general costs...

Jurisdiction
Australia
Judgment Date
17 November 2016
Procedural Posture
Costs of Interlocutory Proceedings / Application for a Specified Gross Sum Costs Order Under S 98(4) of the Civil Procedure Act 2005 (nsw)
Outcome
The plaintiff's application for a specified gross sum costs order was refused, and costs of the application were reserved.
Legal Topics
['specified Gross Sum Costs Order' 'interlocutory Costs' 'reserved Costs' 'costs Follow the Event' 'postponement of Enforceability of Interlocutory Costs']
['civil Procedure' 'costs'] ['specified Gross Sum Costs Order' 'interlocutory Costs' 'reserved Costs' 'costs Follow the Event' 'postponement of Enforceability of Interlocutory Costs']

Case Brief

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Procedural Posture

Costs of Interlocutory Proceedings / Application for a Specified Gross Sum Costs Order Under S 98(4) of the Civil Procedure Act 2005 (nsw)

Legal Issues

  1. 1 ["Whether the plaintiff should receive a specified gross sum costs order for costs of the defendants' amended Notice of Motion dismissed by Harrison AsJ and costs thrown away by reason of the adjournment ordered on 24 August 2016." 'Whether the general rules as to costs, reserved costs, and postponement of enforceability of interlocutory costs should be displaced.' "Whether making the costs order sought would stultify the defendants' prosecution of their cross-claim."]

Ratio Decidendi

The Court was not persuaded that the general costs rules should be displaced. It was not clear that the defendants' motion dismissed by Harrison AsJ involved forensic delinquency, and the reservation of costs suggested the ultimate conclusion of the litigation hung in the balance. Although judgment for possession had been entered for the plaintiff, it was by consent and did not make the final outcome predictable because the defendants' cross-claim remained live and did not appear devoid of merit. The Court was satisfied that the lump sum orders sought would stultify the defendants' prosecution of their cross-claim, and that the interests of justice favoured applying the general costs...

Court Disposition

The plaintiff's application for a specified gross sum costs order was refused, and costs of the application were reserved.

Orders

  • ["The plaintiff's application for a specified gross sum costs order is refused;" 'Costs of the application are reserved.']