Thomson v Sweeney & Ors [2013] NSWSC 1383

Thomson v Sweeney & Ors [2013] NSWSC 1383

The court departed from the usual order for costs out of proceeds under s 66G due to the defendants' abandonment of partition and set-off claims, determining the plaintiff was the successful party in substantive disputed issues, and ordering the defendants to pay the plaintiff's costs from 27 March 2013 to 3 September 2013, plus 75% of the plaintiff's post-3 September costs, while pre-27 March costs of both sides were to be paid out of the proceeds with certain exclusions.

Jurisdiction
Australia
Judgment Date
09 September 2013
Procedural Posture
Equity Proceedings—application for Appointment of Trustees for Sale of Land / Post Settlement, Costs Determination
Outcome
Costs determined: partial costs awarded to plaintiff, balance from proceeds of sale as specified.
Legal Topics
['costs Orders' 'statutory Trusts for Sale' 'partition' 'co Ownership of Land']
['equity' 'property Law' 'civil Procedure'] ['costs Orders' 'statutory Trusts for Sale' 'partition' 'co Ownership of Land']

Case Brief

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Procedural Posture

Equity Proceedings—application for Appointment of Trustees for Sale of Land / Post Settlement, Costs Determination

Legal Issues

  1. 1 ['Appropriate costs order where substantive dispute settled aside from costs in application for appointment of trustees for sale under s 66G of Conveyancing Act 1919' "Whether 'usual order' for costs out of proceeds of sale should yield to success-based costs due to defendants' abandoned claims" 'Costs adjustments required if defendants purchase the property and only pay half the purchase price']

Ratio Decidendi

The court departed from the usual order for costs out of proceeds under s 66G due to the defendants' abandonment of partition and set-off claims, determining the plaintiff was the successful party in substantive disputed issues, and ordering the defendants to pay the plaintiff's costs from 27 March 2013 to 3 September 2013, plus 75% of the plaintiff's post-3 September costs, while pre-27 March costs of both sides were to be paid out of the proceeds with certain exclusions.

Court Disposition

Costs determined: partial costs awarded to plaintiff, balance from proceeds of sale as specified.

Orders

  • ["If property purchased by plaintiff or third party: both parties' costs up to 27 March 2013, assessed on ordinary basis (defendants' costs excluding specified affidavits), paid out of proceeds before distribution." "If property purchased by defendants: purchase price adjusted up or down by half the difference...