Tabachnik v Owners Corporation Strata Plan 18597 [2012] NSWLEC 203

Tabachnik v Owners Corporation Strata Plan 18597 [2012] NSWLEC 203

In all the circumstances, and to avoid delay and extra costs, leave to amend should be granted. The applicants should pay the respondent's costs thrown away as a direct and usual consequence of the amendments, but the contentious issue of whether the s 34 conciliation conference costs were thrown away by the amendments should be excluded from that order and reserved.

Jurisdiction
Australia
Judgment Date
03 September 2012
Procedural Posture
Class 3 Encroachment Case / Notice of Motion Seeking Leave to Amend the Class 3 Application and Statement of Facts and Contentions
Outcome
Leave to amend granted; costs thrown away ordered in part; s 34 costs and hearing costs reserved.
Legal Topics
['application to Amend' 'encroachment' 'section 34 Conciliation Conference' 'costs Thrown Away' 'transfer or Joinder With Related Supreme Court Proceedings']
['practice and Procedure' 'land and Environment' 'costs'] ['application to Amend' 'encroachment' 'section 34 Conciliation Conference' 'costs Thrown Away' 'transfer or Joinder With Related Supreme Court Proceedings']

Case Brief

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Procedural Posture

Class 3 Encroachment Case / Notice of Motion Seeking Leave to Amend the Class 3 Application and Statement of Facts and Contentions

Legal Issues

  1. 1 ['Whether the applicants should have leave to amend their class 3 application and Statement of Facts and Contentions.' 'Whether leave to amend should be deferred because of related Supreme Court proceedings and possible transfer or joinder.' "Whether the applicants should pay the respondent's costs thrown away by the amendments." "Whether the respondent's costs of the s 34 conciliation conference should be included in costs thrown away by the amendments."]

Ratio Decidendi

In all the circumstances, and to avoid delay and extra costs, leave to amend should be granted. The applicants should pay the respondent's costs thrown away as a direct and usual consequence of the amendments, but the contentious issue of whether the s 34 conciliation conference costs were thrown away by the amendments should be excluded from that order and reserved.

Court Disposition

Leave to amend granted; costs thrown away ordered in part; s 34 costs and hearing costs reserved.

Orders

  • ['The applicants have leave to amend their class 3 application and their Statement of Facts and Contentions as outlined in the drafts submitted with their Notice of Motion of 20 August and/or the draft of the said Statement of Facts and Contentions handed up in court today.' "The applicants pay the respondent's...