J C Butko Engineering Pty Ltd v Talis Civil Pty Ltd (No 2) [2021] NSWDC 823

J C Butko Engineering Pty Ltd v Talis Civil Pty Ltd (No 2) [2021] NSWDC 823

The defendant's application was refused because the plaintiff had obtained a final judgment on Payment Claim 13, succeeded on the strike out aspects of the motion, and faced withdrawn or failed challenges by the defendant; the plaintiff's substantial success justified a favourable costs order despite the defendant preserving its defence to Payment Claim 14.

Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Civil Procedural Ruling on Costs / Defendant's Application to Vacate and Vary a Costs Order Made After Summary Judgment and Strike Out Orders
Outcome
Defendant's application refused; orders made on 29 October 2021 confirmed; defendant ordered to pay the costs of the application to vacate and vary the costs order.
Legal Topics
['summary Judgment' 'strike Out of Defence' 'costs Follow the Event' 'partial Success' 'costs Discretion']
['costs' 'civil Procedure'] ['summary Judgment' 'strike Out of Defence' 'costs Follow the Event' 'partial Success' 'costs Discretion']

Case Brief

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Procedural Posture

Civil Procedural Ruling on Costs / Defendant's Application to Vacate and Vary a Costs Order Made After Summary Judgment and Strike Out Orders

Legal Issues

  1. 1 ['Whether the costs order made in favour of the plaintiff on 29 October 2021 should be vacated and replaced with no order as to the costs of the motion.' "Whether the parties' partial success on the plaintiff's motion justified departing from the ordinary costs order."]

Ratio Decidendi

The defendant's application was refused because the plaintiff had obtained a final judgment on Payment Claim 13, succeeded on the strike out aspects of the motion, and faced withdrawn or failed challenges by the defendant; the plaintiff's substantial success justified a favourable costs order despite the defendant preserving its defence to Payment Claim 14.

Court Disposition

Defendant's application refused; orders made on 29 October 2021 confirmed; defendant ordered to pay the costs of the application to vacate and vary the costs order.

Orders

  • ["Defendant's application is refused." 'Confirm the orders made on 29 October 2021.' "Order the defendant to pay the costs of the defendant's application to vacate and vary the costs order."]