Sergei Sergienko v AXL Financial Pty Limited (Costs) [2022] NSWSC 178

Sergei Sergienko v AXL Financial Pty Limited (Costs) [2022] NSWSC 178

Sergienko was the successful party on the substantial issue between him and DKEC, namely his right to be secured by the mortgage and his priority over DKEC. The abandoned Trading Business Claims did not warrant departure from the general costs rule and did not appreciably lengthen the proceedings. DKEC's adjournment motion and subsequent costs submissions were so lacking in substance that indemnity costs were warranted for the specified appearances and motion.

Jurisdiction
Australia
Judgment Date
28 February 2022
Procedural Posture
Costs / Costs Determination After Principal Judgment and Dismissed Appeal
Outcome
The plaintiff obtained costs orders against the first, second and third defendants, and against the fourth and fifth defendants/cross-claimants, with indemnity costs for specified appearances and the motion filed on 10 February 2022.
Legal Topics
['costs Follow the Event' 'issue Based Costs' 'indemnity Costs' 'adjournment Motion' 'equitable Compensation']
['costs' 'civil Procedure' 'equity'] ['costs Follow the Event' 'issue Based Costs' 'indemnity Costs' 'adjournment Motion' 'equitable Compensation']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs / Costs Determination After Principal Judgment and Dismissed Appeal

Legal Issues

  1. 1 ['Whether the Court should depart from the general rule that costs follow the event because the successful plaintiff abandoned the Trading Business Claims.' "Whether the fourth and fifth defendants/cross-claimants should pay the plaintiff's costs of the second cross-claim." "Whether the plaintiff's costs of the appearances on 7 and 11 February 2022 and the motion filed on 10 February 2022 should be paid on the indemnity basis."]

Ratio Decidendi

Sergienko was the successful party on the substantial issue between him and DKEC, namely his right to be secured by the mortgage and his priority over DKEC. The abandoned Trading Business Claims did not warrant departure from the general costs rule and did not appreciably lengthen the proceedings. DKEC's adjournment motion and subsequent costs submissions were so lacking in substance that indemnity costs were warranted for the specified appearances and motion.

Court Disposition

The plaintiff obtained costs orders against the first, second and third defendants, and against the fourth and fifth defendants/cross-claimants, with indemnity costs for specified appearances and the motion filed on 10 February 2022.

Orders

  • ["The first, second and third defendants are to pay the plaintiff's costs of the proceedings against them." "The fourth and fifth defendants/first and second cross-claimants on the second cross-claim are to pay the plaintiffs costs of the proceedings against them and of the second cross-claim on the ordinary basis...