Birch v Glissen Pty Ltd [2005] NSWSC 337

Birch v Glissen Pty Ltd [2005] NSWSC 337

Indemnity costs were warranted because the caveat, on its face, claimed an interest based on the Deed dated 21 January 2005, which could not support the caveat lodged over the Turramurra land; the plaintiff's alternative reliance on the agreement dated 19 January 2005 could not succeed because that agreement was not the estate or interest described in the caveat and Depsun established that the Court could not amend that description. The plaintiff, properly advised, must have known that the claim for extension of the caveat could not be supported, and no explanation was offered for pursuing the hopeless claim.

Jurisdiction
Australia
Judgment Date
15 April 2005
Procedural Posture
Notice of Motion Concerning Extension of a Caveat and Costs / Determination of Whether Costs of the Plaintiff's Unsuccessful Notice of Motion Should Be Paid on the Indemnity Basis
Outcome
The defendant obtained an order that the costs previously ordered in its favour be payable on the indemnity basis.
Legal Topics
['indemnity Costs' 'special Circumstances' 'caveat Extension' 'amendment of Caveat' 'no Real Prospect of Success']
['practice and Procedure' 'costs' 'real Property'] ['indemnity Costs' 'special Circumstances' 'caveat Extension' 'amendment of Caveat' 'no Real Prospect of Success']

Case Brief

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Procedural Posture

Notice of Motion Concerning Extension of a Caveat and Costs / Determination of Whether Costs of the Plaintiff's Unsuccessful Notice of Motion Should Be Paid on the Indemnity Basis

Legal Issues

  1. 1 ["Whether the costs payable by the plaintiff to the defendant in respect of the plaintiff's unsuccessful notice of motion for extension of a caveat should be ordered to be paid on the indemnity basis." "Whether the plaintiff's claim for extension of the caveat had any real prospect of success on the basis of the Deed dated 21 January 2005 or the agreement dated 19 January 2005." 'Whether the inability to amend the description of the estate or interest claimed in the caveat enlivened the discretion to award indemnity costs.']

Ratio Decidendi

Indemnity costs were warranted because the caveat, on its face, claimed an interest based on the Deed dated 21 January 2005, which could not support the caveat lodged over the Turramurra land; the plaintiff's alternative reliance on the agreement dated 19 January 2005 could not succeed because that agreement was not the estate or interest described in the caveat and Depsun established that the Court could not amend that description. The plaintiff, properly advised, must have known that the claim for extension of the caveat could not be supported, and no explanation was offered for pursuing the hopeless claim.

Court Disposition

The defendant obtained an order that the costs previously ordered in its favour be payable on the indemnity basis.

Orders

  • ['Order that the costs payable pursuant to order (2) made in these proceedings on 30 March 2005 be payable on the indemnity basis.' 'Those costs are to include the costs of this application.' 'The exhibits tendered on the application may be handed out.']