FitzGerald v Foxes Lane (NSW) Pty Ltd (No 2) [2024] NSWSC 1458

FitzGerald v Foxes Lane (NSW) Pty Ltd (No 2) [2024] NSWSC 1458

Costs are not to be apportioned on an issue-by-issue basis as the issues of extinguishment, modification, and proper construction of the ROC were not clearly separable or dominant and were closely linked both factually and legally. The general rule applies, so the plaintiff’s application for variation of costs orders is dismissed and he is to pay the defendants' costs of the application.

Parties
Plaintiff: Joseph Roger FitzGerald; First Defendant: Foxes Lane (NSW) Pty Ltd; Second Defendant: Gerardus Johannes Jacobus Kurstjens; Third Defendant: Maria Mattheiu Elisabeth Kurstjens
Jurisdiction
Australia
Judgment Date
18 November 2024
Procedural Posture
Equity Real Property / Costs Application After Principal Judgment
Outcome
Plaintiff's application dismissed; plaintiff to pay defendants' costs of the application.
Legal Topics
Party/party, Court's Discretion, Apportionment of Costs
Costs Party/party Court's Discretion Apportionment of Costs

Case Brief

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Parties

Joseph Roger FitzGerald

Plaintiff

Foxes Lane (NSW) Pty Ltd

First Defendant

Gerardus Johannes Jacobus Kurstjens

Second Defendant

Maria Mattheiu Elisabeth Kurstjens

Third Defendant

Procedural Posture

Equity Real Property / Costs Application After Principal Judgment

Legal Issues

  1. 1 Whether costs should be apportioned on an issue-by-issue basis where parties were partly successful
  2. 2 Whether defendants' extinguishment claim was a dominant or separable issue for costs purposes

Ratio Decidendi

Costs are not to be apportioned on an issue-by-issue basis as the issues of extinguishment, modification, and proper construction of the ROC were not clearly separable or dominant and were closely linked both factually and legally. The general rule applies, so the plaintiff’s application for variation of costs orders is dismissed and he is to pay the defendants' costs of the application.

Court Disposition

Plaintiff's application dismissed; plaintiff to pay defendants' costs of the application.

Orders

  • The plaintiff's application for a variation of Order 5 made by the Court on 21 October 2024 is dismissed.
  • The plaintiff to pay the defendants' costs of his application for costs made on 28 October 2024, as agreed or assessed.