Edwards v Lisker Pty Ltd [2018] NSWSC 81

Edwards v Lisker Pty Ltd [2018] NSWSC 81

The first defendant's service of the lapsing notice created the need for the plaintiff to obtain a court order to maintain the protection of his caveat, there was no sound basis at that time to challenge the plaintiff's caveated interest, consent to a further caveat was not forthcoming, and it was not reasonable to expect the plaintiff to allow the caveat to lapse or rely on a caveat based on a later contract. In the exercise of the costs discretion under s 98 of the Civil Procedure Act 2005 (NSW), the first defendant should therefore pay the plaintiff's costs of the application to extend the caveat, with no imposed maximum under s 98(4).

Jurisdiction
Australia
Judgment Date
08 February 2018
Procedural Posture
Application for Extension of Operation of Caveat and Costs / Costs Determined on the Papers After Consent Order Extending Caveat
Outcome
First defendant ordered to pay the plaintiff's costs of his application to extend the operation of the caveat and the costs of the costs application.
Legal Topics
['extension of Operation of Caveat' 'lapsing Notice' 'costs Discretion']
['equity' 'costs' 'real Property'] ['extension of Operation of Caveat' 'lapsing Notice' 'costs Discretion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Extension of Operation of Caveat and Costs / Costs Determined on the Papers After Consent Order Extending Caveat

Legal Issues

  1. 1 ["Whether the first defendant should pay the plaintiff's costs of the application to extend the operation of the caveat after serving a lapsing notice." "Whether the plaintiff was justified in commencing proceedings to protect his caveat despite the defendants' consent to extension and possible alternatives to a court order." 'Whether any costs order should be limited to a maximum of $10,000.']

Ratio Decidendi

The first defendant's service of the lapsing notice created the need for the plaintiff to obtain a court order to maintain the protection of his caveat, there was no sound basis at that time to challenge the plaintiff's caveated interest, consent to a further caveat was not forthcoming, and it was not reasonable to expect the plaintiff to allow the caveat to lapse or rely on a caveat based on a later contract. In the exercise of the costs discretion under s 98 of the Civil Procedure Act 2005 (NSW), the first defendant should therefore pay the plaintiff's costs of the application to extend the caveat, with no imposed maximum under s 98(4).

Court Disposition

First defendant ordered to pay the plaintiff's costs of his application to extend the operation of the caveat and the costs of the costs application.

Orders

  • ["The plaintiff's costs of his application to extend the operation of the caveat be paid by the first defendant." "The first defendant pay the plaintiff's costs of this application."]