Kenny v Ebling Pty Ltd [2001] NSWSC 393

Kenny v Ebling Pty Ltd [2001] NSWSC 393

Plaintiff must pay the second defendant's costs of the proceedings, including the costs of the ex parte application, as the application was withdrawn in the plaintiff's own interests and the allegations giving rise to joinder of the second defendant were not pursued or proved.

Parties
Plaintiff: John Paul Kenny; First Defendant: Ebling Pty Limited; Second Defendant: Country Heights Australia Pty Limited
Jurisdiction
Australia
Judgment Date
10 May 2001
Procedural Posture
Equity Proceeding / Interlocutory Application/order for Costs
Outcome
Plaintiff ordered to pay second defendant's costs; proceedings against second defendant dismissed; proceedings against first defendant to continue on pleadings.
Legal Topics
Practice Under Supreme Court Rules, Ex Parte Application, Interim Preservation, Caveats, Injunctions, Costs
Equity Civil Procedure Practice Under Supreme Court Rules Ex Parte Application Interim Preservation Caveats Injunctions Costs

Case Brief

Summary, issues, holding and outcome

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Parties

John Paul Kenny

Plaintiff

Ebling Pty Limited

First Defendant

Country Heights Australia Pty Limited

Second Defendant

Procedural Posture

Equity Proceeding / Interlocutory Application/order for Costs

Legal Issues

  1. 1 Whether second defendant is entitled to costs for attending ex parte application which was withdrawn by the plaintiff
  2. 2 Whether joining the second defendant was reasonable given the allegation of collusion
  3. 3 Whether the plaintiff acted unreasonably or properly in making and later withdrawing the ex parte application

Ratio Decidendi

Plaintiff must pay the second defendant's costs of the proceedings, including the costs of the ex parte application, as the application was withdrawn in the plaintiff's own interests and the allegations giving rise to joinder of the second defendant were not pursued or proved.

Court Disposition

Plaintiff ordered to pay second defendant's costs; proceedings against second defendant dismissed; proceedings against first defendant to continue on pleadings.

Orders

  • Plaintiff to pay second defendant's costs including ex parte application costs.
  • Proceedings against first defendant to continue on pleadings.