Coshott v Parker & Collins as Executors of the Estate of the late Michael Petrovic Lenin (No. 2) [2015] NSWSC 1020

Coshott v Parker & Collins as Executors of the Estate of the late Michael Petrovic Lenin (No. 2) [2015] NSWSC 1020

The Applicant was not entitled to his costs because the original Notice of Motion, on the evidence then served, was doomed to fail: there was no evidence of assignment, no evidence of a request for payment supporting subrogation, and no basis to remove the Defendants as judgment creditors or substitute the Applicant. The Defendants were entitled to their costs because they properly resisted the original relief and ceased to contest subrogation once late evidence and amended relief limited the claim to a declaration. Indemnity costs were not justified because the Defendants had not earlier indicated that they would agree to a declaration limited to subrogation, and a discounted gross sum...

Jurisdiction
Australia
Judgment Date
28 July 2015
Procedural Posture
Costs Application on Notice of Motion / After Judgment on the Applicant's Notice of Motion; Determination of Costs and Final Declaration
Outcome
Declaration made that the Applicant is subrogated to the Defendants' rights in respect of the judgment debt, and the Applicant ordered to pay the Defendants' costs as a gross sum; indemnity costs refused.
Legal Topics
['gross Sum Costs Order' 'indemnity Costs' 'subrogation' 'judgment Debt']
['civil Procedure' 'costs' 'equity'] ['gross Sum Costs Order' 'indemnity Costs' 'subrogation' 'judgment Debt']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application on Notice of Motion / After Judgment on the Applicant's Notice of Motion; Determination of Costs and Final Declaration

Legal Issues

  1. 1 ['Whether the Applicant should have his costs of the Motion because he was largely successful after amending the relief sought and adducing further evidence.' 'Whether the Defendants should receive their costs of the Motion, including on an indemnity basis, because the original relief was abandoned and was properly resisted.' 'Whether a gross sum costs order should be made under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

The Applicant was not entitled to his costs because the original Notice of Motion, on the evidence then served, was doomed to fail: there was no evidence of assignment, no evidence of a request for payment supporting subrogation, and no basis to remove the Defendants as judgment creditors or substitute the Applicant. The Defendants were entitled to their costs because they properly resisted the original relief and ceased to contest subrogation once late evidence and amended relief limited the claim to a declaration. Indemnity costs were not justified because the Defendants had not earlier indicated that they would agree to a declaration limited to subrogation, and a discounted gross sum...

Court Disposition

Declaration made that the Applicant is subrogated to the Defendants' rights in respect of the judgment debt, and the Applicant ordered to pay the Defendants' costs as a gross sum; indemnity costs refused.

Orders

  • ['Declare that the Applicant, Ronald Coshott, is subrogated to the rights of the Defendants with respect to the judgment debt they have against the Plaintiff entered in these proceedings on 14 December 2012.' "I order the Applicant to pay the Defendants' costs in the sum of $8,000 in respect of the Applicant's...