Coleman v Hart-Hughes (No 2) [2017] NSWSC 902

Coleman v Hart-Hughes (No 2) [2017] NSWSC 902

The plaintiff achieved practical success against the first defendant on the principal issue, namely the existence of the equitable charge, and no sufficient reason justified departing from the usual costs order; those costs were incurred in protecting the plaintiff's security and should be secured by the charge. As between the plaintiff and the second and third defendants, neither side should receive costs because the second and third defendants had legitimate concerns about the form of relief, the impasse was not caused by one party alone, and both sides bore responsibility for the delay in resolving their issues.

Jurisdiction
Australia
Judgment Date
06 July 2017
Procedural Posture
Costs / Determination of Costs on the Papers After Judgment Granting Declaratory Relief
Outcome
First defendant ordered to pay the plaintiff's costs of the proceedings between them from 28 April 2016, with those costs secured by the plaintiff's charge; no order as to costs between the plaintiff and the second and third defendants.
Legal Topics
['costs Between Multiple Defendants' 'equitable Charge Over Land' 'caveat Extension Proceedings' 'registered Mortgages and Priority' 'costs Secured by Equitable Charge' 'uniform Civil Procedure Rules 2005 (nsw), R 42.25']
['civil Procedure' 'equity' 'costs'] ['costs Between Multiple Defendants' 'equitable Charge Over Land' 'caveat Extension Proceedings' 'registered Mortgages and Priority' 'costs Secured by Equitable Charge' 'uniform Civil Procedure Rules 2005 (nsw), R 42.25']

Case Brief

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Procedural Posture

Costs / Determination of Costs on the Papers After Judgment Granting Declaratory Relief

Legal Issues

  1. 1 ["Whether the first defendant should pay the plaintiff's costs of the proceedings between them despite the plaintiff not obtaining all relief sought." "Whether the plaintiff's costs against the first defendant should be secured by the equitable charge declared on 26 May 2017." "Whether the second and third defendants should pay the plaintiff's costs, or whether the plaintiff should pay their costs, in circumstances involving registered mortgages and negotiations over the form of orders." 'Whether orders should be made under Uniform Civil Procedure Rules 2005 (NSW), r 42.25 preventing the second and third defendants from paying costs out of the mortgaged property.']

Ratio Decidendi

The plaintiff achieved practical success against the first defendant on the principal issue, namely the existence of the equitable charge, and no sufficient reason justified departing from the usual costs order; those costs were incurred in protecting the plaintiff's security and should be secured by the charge. As between the plaintiff and the second and third defendants, neither side should receive costs because the second and third defendants had legitimate concerns about the form of relief, the impasse was not caused by one party alone, and both sides bore responsibility for the delay in resolving their issues.

Court Disposition

First defendant ordered to pay the plaintiff's costs of the proceedings between them from 28 April 2016, with those costs secured by the plaintiff's charge; no order as to costs between the plaintiff and the second and third defendants.

Orders

  • ["That the first defendant pay the plaintiff's costs of the proceedings between the plaintiff and the first defendant as from 28 April 2016." 'That such costs are secured by the charge the subject of the declaration made by the Court on 26 May 2017.' 'That there be no order as to the costs of the proceedings between...