Brand v Brand [2019] NSWSC 1754

Brand v Brand [2019] NSWSC 1754

Because the proceedings resolved without a determination on the merits and the Court could not determine the disputed contractual and payment issues without a hypothetical trial, and because neither party was shown to have acted unreasonably in commencing, defending, maintaining, or negotiating the resolution of the proceedings, the appropriate exercise of the costs discretion was that each party bear its own costs.

Jurisdiction
Australia
Judgment Date
09 December 2019
Procedural Posture
Costs Determination in Proceedings Seeking Orders Pursuant to S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale / Proceedings Resolved Without Determination on the Merits; Costs Determined on the Papers
Outcome
Each party ordered to pay its own costs of the proceedings.
Legal Topics
['appointment of Trustees for Sale' 'co Ownership of Property' 'mortgage Refinancing' 'calderbank Offer' 'proceedings Resolved Without Determination on the Merits']
['costs' 'equity' 'property Law'] ['appointment of Trustees for Sale' 'co Ownership of Property' 'mortgage Refinancing' 'calderbank Offer' 'proceedings Resolved Without Determination on the Merits']

Case Brief

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Procedural Posture

Costs Determination in Proceedings Seeking Orders Pursuant to S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale / Proceedings Resolved Without Determination on the Merits; Costs Determined on the Papers

Legal Issues

  1. 1 ['Whether either party acted so unreasonably in the commencement or maintenance of the proceedings that the other party should receive costs despite the proceedings resolving without a determination on the merits.' "Whether the defendant's conduct before commencement of proceedings necessitated the plaintiff's s 66G application." "Whether the defendant acted unreasonably in failing to accept the plaintiff's Calderbank offer dated 23 October 2019."]

Ratio Decidendi

Because the proceedings resolved without a determination on the merits and the Court could not determine the disputed contractual and payment issues without a hypothetical trial, and because neither party was shown to have acted unreasonably in commencing, defending, maintaining, or negotiating the resolution of the proceedings, the appropriate exercise of the costs discretion was that each party bear its own costs.

Court Disposition

Each party ordered to pay its own costs of the proceedings.

Orders

  • ['Order that each party pay its own costs of the proceedings.']