Tanilba Beach Pty Limited v JR & JB Pty Limited [2018] NSWSC 288

Tanilba Beach Pty Limited v JR & JB Pty Limited [2018] NSWSC 288

The Court exercised its discretion to grant Mr Burrell time to serve bills of costs for assessment before granting leave to issue a writ of execution, in view of the substantial likely set-off of costs orders and to avoid injustice of enforcement against him where mutual liabilities nearly cancel each other out.

Parties
Applicant: Reavill Farm Pty Ltd; Applicant: Champions Quarry Pty Limited; Applicant: Macabil Pty Limited; Applicant: Jeffrey Francis Champion; Applicant: Diana Christine Champion; Second Defendant: John Llewellyn Burrell
Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Notice of Motion (leave to Issue Writ of Execution) / Procedural Order Before Final Determination of Execution Application
Outcome
Time granted for Mr Burrell to serve bills of costs for assessment; enforcement application stood over; costs reserved.
Legal Topics
Writ of Execution, Set Off, Costs Orders, Assignment of Judgment Debt
Civil Procedure Writ of Execution Set Off Costs Orders Assignment of Judgment Debt

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Parties

Reavill Farm Pty Ltd

Applicant

Champions Quarry Pty Limited

Applicant

Macabil Pty Limited

Applicant

Jeffrey Francis Champion

Applicant

Diana Christine Champion

Applicant

John Llewellyn Burrell

Second Defendant

Procedural Posture

Notice of Motion (leave to Issue Writ of Execution) / Procedural Order Before Final Determination of Execution Application

Legal Issues

  1. 1 Whether leave should be granted to issue a writ of execution under UCPR r 39.1
  2. 2 Whether a set off of costs orders should preclude enforcement of the assigned judgment debt
  3. 3 Whether opportunity for costs assessment should be afforded before execution

Ratio Decidendi

The Court exercised its discretion to grant Mr Burrell time to serve bills of costs for assessment before granting leave to issue a writ of execution, in view of the substantial likely set-off of costs orders and to avoid injustice of enforcement against him where mutual liabilities nearly cancel each other out.

Court Disposition

Time granted for Mr Burrell to serve bills of costs for assessment; enforcement application stood over; costs reserved.

Orders

  • Mr Burrell is to serve a bill of costs concerning counsels' fees in the primary proceedings on the Champion Interests by 23 March 2018.
  • Mr Burrell or BS Legal is to serve a bill of costs comprising of the solicitor's costs and disbursements incurred in the primary proceedings on the Champion Interests by 1 June 2018.