Becker v Gurr [2018] NSWSC 1717

Becker v Gurr [2018] NSWSC 1717

The proceedings should properly be regarded as resulting from the defendants' service of the lapsing notice, and it was reasonable for the plaintiff to commence proceedings to enforce her rights under the Deed. The Deed was prima facie valid, was not unworkable as suggested, and plainly gave the plaintiff the right to lodge a caveat to secure payment of $23,000. The defendants' payment of the $23,000 shortly before the summary judgment hearing amounted to effective capitulation, and the Court could state with confidence that the plaintiff would have succeeded if the matter had proceeded to hearing. The defendants should therefore pay the plaintiff's costs, but only on the ordinary basis...

Jurisdiction
Australia
Judgment Date
12 November 2018
Procedural Posture
Costs in Equity Proceedings Arising From a Caveat and Deed of Mutual Rescission of Contract / On the Papers After the Proceedings Were Resolved Without Determination on the Merits
Outcome
Defendants ordered to pay the plaintiff's costs on the ordinary basis; indemnity costs refused.
Legal Topics
['costs Where Proceedings Resolve Without Determination on the Merits' 'caveat Lapsing Notice' 'extension of Operation of Caveat' 'indemnity Costs' 'ordinary Basis Costs' 'deed of Mutual Rescission of Contract']
['costs' 'equity' 'real Property'] ['costs Where Proceedings Resolve Without Determination on the Merits' 'caveat Lapsing Notice' 'extension of Operation of Caveat' 'indemnity Costs' 'ordinary Basis Costs' 'deed of Mutual Rescission of Contract']

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

Costs in Equity Proceedings Arising From a Caveat and Deed of Mutual Rescission of Contract / On the Papers After the Proceedings Were Resolved Without Determination on the Merits

Legal Issues

  1. 1 ["Whether the defendants should pay the plaintiff's costs after paying the $23,000 claimed and effectively resolving the proceedings without a merits determination." 'Whether costs should be ordered on an indemnity basis.' "Whether the plaintiff's failure to send a letter before action or alleged defect in the caveat justified no order as to costs or refusal of indemnity costs."]

Ratio Decidendi

The proceedings should properly be regarded as resulting from the defendants' service of the lapsing notice, and it was reasonable for the plaintiff to commence proceedings to enforce her rights under the Deed. The Deed was prima facie valid, was not unworkable as suggested, and plainly gave the plaintiff the right to lodge a caveat to secure payment of $23,000. The defendants' payment of the $23,000 shortly before the summary judgment hearing amounted to effective capitulation, and the Court could state with confidence that the plaintiff would have succeeded if the matter had proceeded to hearing. The defendants should therefore pay the plaintiff's costs, but only on the ordinary basis...

Court Disposition

Defendants ordered to pay the plaintiff's costs on the ordinary basis; indemnity costs refused.

Orders

  • ["The defendants pay the plaintiff's costs of the proceedings on the ordinary basis."]