Penrose v Fernandez [2024] NSWSC 1207

Penrose v Fernandez [2024] NSWSC 1207

The plaintiff should pay the defendants' costs of and incidental to the plaintiff's motions seeking leave to amend, as agreed or assessed, payable forthwith, because the amendment was an indulgence granted and the plaintiff failed to act expeditiously, and there was no unreasonable opposition by the defendants. There will be no order as to costs in respect of the defendants' notice of motion to strike out, as no justification to depart from the ordinary position exists.

Parties
Plaintiff: Rui Yan Xie Penrose; First Defendant: Jose Luis Guerrero Fernandez; Second Defendant: Ozziemarket Pty Ltd
Jurisdiction
Australia
Judgment Date
24 September 2024
Procedural Posture
Civil / Interlocutory (costs Determination Following Motions to Amend and Strike Out)
Outcome
Plaintiff to pay defendants' costs of and incidental to the plaintiff's motions filed on 7 May 2024 and 21 December 2023, payable forthwith. Plaintiff's solicitor to provide affidavit regarding plaintiff's personal liability for costs. No order as to costs for defendants' motion filed on 11 June 2024.
Legal Topics
Costs, Interlocutory Proceedings, Amendment of Pleadings, Party/party Costs Orders
Equity Real Property Costs Interlocutory Proceedings Amendment of Pleadings Party/party Costs Orders

Case Brief

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Parties

Rui Yan Xie Penrose

Plaintiff

Jose Luis Guerrero Fernandez

First Defendant

Ozziemarket Pty Ltd

Second Defendant

Procedural Posture

Civil / Interlocutory (costs Determination Following Motions to Amend and Strike Out)

Legal Issues

  1. 1 Whether plaintiff should pay defendants' costs of interlocutory motions
  2. 2 Whether costs should be payable forthwith
  3. 3 Appropriate costs orders where consent orders are made without merits hearing

Ratio Decidendi

The plaintiff should pay the defendants' costs of and incidental to the plaintiff's motions seeking leave to amend, as agreed or assessed, payable forthwith, because the amendment was an indulgence granted and the plaintiff failed to act expeditiously, and there was no unreasonable opposition by the defendants. There will be no order as to costs in respect of the defendants' notice of motion to strike out, as no justification to depart from the ordinary position exists.

Court Disposition

Plaintiff to pay defendants' costs of and incidental to the plaintiff's motions filed on 7 May 2024 and 21 December 2023, payable forthwith. Plaintiff's solicitor to provide affidavit regarding plaintiff's personal liability for costs. No order as to costs for defendants' motion filed on 11 June 2024.

Orders

  • Plaintiff to pay defendants' costs of and incidental to plaintiff's motion filed 7 May 2024, as agreed or assessed, payable forthwith.
  • Plaintiff to pay defendants' costs of and incidental to plaintiff's motion filed 21 December 2023, as agreed or assessed, payable forthwith.