Vardas v Coshott [2017] NSWSC 29

Vardas v Coshott [2017] NSWSC 29

On its proper construction, the Deed of Release is a complete defence to the costs assessment application as the application constitutes a 'claim' within the broad definition in the Deed. The payment to the Coshotts was inclusive of all claims for costs, and the release and indemnity provisions bar the Coshotts from prosecuting further steps based on prior costs orders. Accordingly, by commencing and maintaining the costs assessment, the Coshotts are in breach of the Deed.

Jurisdiction
Australia
Judgment Date
06 February 2017
Procedural Posture
Contract / Equity / Final Judgment at First Instance
Outcome
Judgment for the plaintiff. Declarations and injunction granted. Consequential costs reserved.
Legal Topics
['construction of Deeds' 'release and Settlement' 'costs Assessment' 'restraint on Proceedings']
['contract Law' 'equity' 'civil Procedure'] ['construction of Deeds' 'release and Settlement' 'costs Assessment' 'restraint on Proceedings']

Case Brief

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Procedural Posture

Contract / Equity / Final Judgment at First Instance

Legal Issues

  1. 1 ["Whether the cost assessment application falls within the meaning of 'claim' in the Deed of Release so as to preclude further steps being taken in the costs assessment process." 'Whether the Deed bars the Coshotts from bringing or maintaining an application for costs assessment based on interlocutory costs orders made prior to the Deed.']

Ratio Decidendi

On its proper construction, the Deed of Release is a complete defence to the costs assessment application as the application constitutes a 'claim' within the broad definition in the Deed. The payment to the Coshotts was inclusive of all claims for costs, and the release and indemnity provisions bar the Coshotts from prosecuting further steps based on prior costs orders. Accordingly, by commencing and maintaining the costs assessment, the Coshotts are in breach of the Deed.

Court Disposition

Judgment for the plaintiff. Declarations and injunction granted. Consequential costs reserved.

Orders

  • ['Declare that the first and second defendants are in breach of the Deed of Release by initiating and maintaining the costs assessment.' 'Permanently restrain the first and second defendants from taking any steps to prosecute or proceed with or give effect to the costs assessment before the third defendant.' 'Order...