Capolingua v Da Silva (No 3) [2017] NSWSC 669

Capolingua v Da Silva (No 3) [2017] NSWSC 669

It would not be appropriate for the costs of both parties to be paid out of the proceeds of sale; only the plaintiff's costs of the proceedings (including the cross-claim) are to be paid out of the proceeds, with the defendant to bear her own costs, taking into account the nature of the proceedings, the conduct and positions of the parties, and the degree of their respective success.

Parties
Plaintiff: Nick Jason Carl Capolingua; Defendant: Janine Da Silva
Jurisdiction
Australia
Judgment Date
29 May 2017
Procedural Posture
Application Under Conveyancing Act S 66 G / Post Judgment (costs Determination)
Outcome
Order made that the plaintiff's costs be paid out of the proceeds of sale; defendant to bear her own costs.
Legal Topics
Costs, Trustees for Sale, Co Ownership of Property
Equity Property Law Civil Procedure Costs Trustees for Sale Co Ownership of Property

Case Brief

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Parties

Nick Jason Carl Capolingua

Plaintiff

Janine Da Silva

Defendant

Procedural Posture

Application Under Conveyancing Act S 66 G / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether the costs of both parties should be paid from the proceeds of sale in a s 66G application
  2. 2 Appropriate allocation of costs considering the conduct and success of each party

Ratio Decidendi

It would not be appropriate for the costs of both parties to be paid out of the proceeds of sale; only the plaintiff's costs of the proceedings (including the cross-claim) are to be paid out of the proceeds, with the defendant to bear her own costs, taking into account the nature of the proceedings, the conduct and positions of the parties, and the degree of their respective success.

Court Disposition

Order made that the plaintiff's costs be paid out of the proceeds of sale; defendant to bear her own costs.

Orders

  • Order 6 varied to provide for payment of mortgage, costs of sale, then plaintiff's costs (including cross-claim), then distribution of remaining proceeds according to Deed.
  • Order 7 varied to refer to amended order 6(d) instead of 6(c).