Hanson Construction Materials v Shamrock [2009] NSWSC 701

Hanson Construction Materials v Shamrock [2009] NSWSC 701

The plaintiff was given ample notice before commencing the proceedings that its claimed interest was worthless and that there was no practical or commercial point in maintaining the caveat or commencing urgent ex parte proceedings. Its solicitors ignored repeated correspondence and failed to disclose that correspondence on the ex parte application. That conduct amounted to relevant delinquency justifying indemnity costs.

Jurisdiction
Australia
Judgment Date
21 July 2009
Procedural Posture
Costs Ruling in Proceedings Seeking a Declaration of an Equitable Charge and Extension of a Caveat / Ex Tempore Ruling After the Parties Accepted That the Caveat Should Not Be Extended and the Summons Should Be Dismissed
Outcome
The summons was dismissed and the plaintiff was ordered to pay the defendants' costs assessed on the indemnity basis.
Legal Topics
['indemnity Costs' 'relevant Delinquency' 'caveat Extension' 'equitable Charge' 'ex Parte Application']
['civil Procedure' 'costs' 'equity' 'real Property'] ['indemnity Costs' 'relevant Delinquency' 'caveat Extension' 'equitable Charge' 'ex Parte Application']

Case Brief

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Procedural Posture

Costs Ruling in Proceedings Seeking a Declaration of an Equitable Charge and Extension of a Caveat / Ex Tempore Ruling After the Parties Accepted That the Caveat Should Not Be Extended and the Summons Should Be Dismissed

Legal Issues

  1. 1 ['Whether costs should follow the event after the summons was to be dismissed.' "Whether the defendants' costs should be assessed on the ordinary basis or the indemnity basis." "Whether the plaintiff's commencement of proceedings after prior warnings that the caveat claim was commercially worthless constituted relevant delinquency."]

Ratio Decidendi

The plaintiff was given ample notice before commencing the proceedings that its claimed interest was worthless and that there was no practical or commercial point in maintaining the caveat or commencing urgent ex parte proceedings. Its solicitors ignored repeated correspondence and failed to disclose that correspondence on the ex parte application. That conduct amounted to relevant delinquency justifying indemnity costs.

Court Disposition

The summons was dismissed and the plaintiff was ordered to pay the defendants' costs assessed on the indemnity basis.

Orders

  • ['The summons be dismissed.' "The plaintiff pay the defendant's costs." 'Those costs be assessed on the indemnity basis.' 'The exhibit will remain with the file.']