Perpetual Corporate Trust Limited v Ip [2024] NSWSC 728

Perpetual Corporate Trust Limited v Ip [2024] NSWSC 728

Leave to discontinue was granted and no order as to costs was made because the sale of the Wharf St property, which resulted in payment of the debt claimed against the third defendant, was a supervening event making the claim against him futile, the proceedings were still at a relatively early stage, the commencement of the proceedings was justified by the deed of guarantee, mortgage and alleged default, and the plaintiff had not acted unreasonably in commencing or carrying on the proceedings.

Jurisdiction
Australia
Judgment Date
18 June 2024
Procedural Posture
Possession and Debt Recovery Proceedings Involving Guarantees and Mortgages / Plaintiff's Application for Leave to Discontinue the Proceedings Against the Third Defendant and for No Order as to Costs
Outcome
Leave granted to discontinue proceedings against the third defendant, with no order as to costs so that the plaintiff and the third defendant each bear their own costs.
Legal Topics
['discontinuance' 'leave of Court' 'costs on Discontinuance' 'supervening Event' 'possession Proceedings' 'guarantees' 'mortgages']
['civil Procedure' 'costs'] ['discontinuance' 'leave of Court' 'costs on Discontinuance' 'supervening Event' 'possession Proceedings' 'guarantees' 'mortgages']

Case Brief

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Procedural Posture

Possession and Debt Recovery Proceedings Involving Guarantees and Mortgages / Plaintiff's Application for Leave to Discontinue the Proceedings Against the Third Defendant and for No Order as to Costs

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to discontinue the proceedings against the third defendant.' "Whether, on discontinuance after a defence had been filed, the plaintiff should pay the third defendant's costs or whether there should be no order as to costs." 'Whether the sale of another secured property and repayment of the debt claimed against the third defendant was a supervening event making the claim futile.' 'Whether the plaintiff acted so unreasonably in commencing or carrying on the proceedings as to warrant a costs order against it.']

Ratio Decidendi

Leave to discontinue was granted and no order as to costs was made because the sale of the Wharf St property, which resulted in payment of the debt claimed against the third defendant, was a supervening event making the claim against him futile, the proceedings were still at a relatively early stage, the commencement of the proceedings was justified by the deed of guarantee, mortgage and alleged default, and the plaintiff had not acted unreasonably in commencing or carrying on the proceedings.

Court Disposition

Leave granted to discontinue proceedings against the third defendant, with no order as to costs so that the plaintiff and the third defendant each bear their own costs.

Orders

  • ['Grant leave to the plaintiff to discontinue the proceedings against the third defendant.' 'No order as to the costs of the proceedings to the intent that each of the plaintiff and the third defendant should bear its and his own costs.']