Kiel v Buttelig [2015] NSWLC 32

Kiel v Buttelig [2015] NSWLC 32

The court found no exceptional circumstances or disentitling conduct by the defendants that would warrant departure from the ordinary rule that the plaintiff pay the defendants' costs upon discontinuance. The general discretion was not fettered, but the circumstances did not justify an order other than on the ordinary basis; therefore, the plaintiff is to pay the defendants' costs as agreed or assessed.

Jurisdiction
Australia
Judgment Date
10 September 2015
Procedural Posture
Civil / Costs on Discontinuance After Interlocutory Determination
Outcome
Plaintiff to pay defendant's costs as agreed or assessed; no indemnity costs awarded.
Legal Topics
['costs' 'discontinuance' 'discretion of Court on Costs' 'encroachment' 'building Disputes']
['civil Procedure'] ['costs' 'discontinuance' 'discretion of Court on Costs' 'encroachment' 'building Disputes']

Case Brief

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Procedural Posture

Civil / Costs on Discontinuance After Interlocutory Determination

Legal Issues

  1. 1 ["Whether the ordinary rule that the plaintiff pays the defendant's costs on discontinuance should be displaced" 'Whether exceptional circumstances exist to warrant an order for indemnity costs']

Ratio Decidendi

The court found no exceptional circumstances or disentitling conduct by the defendants that would warrant departure from the ordinary rule that the plaintiff pay the defendants' costs upon discontinuance. The general discretion was not fettered, but the circumstances did not justify an order other than on the ordinary basis; therefore, the plaintiff is to pay the defendants' costs as agreed or assessed.

Court Disposition

Plaintiff to pay defendant's costs as agreed or assessed; no indemnity costs awarded.

Orders

  • ["The defendants' costs be paid by the plaintiff in the amount as agreed or assessed." 'Exceptional circumstances have not been established to warrant an order on an indemnity basis.']