Touma v Touma [2019] NSWSC 1670

Touma v Touma [2019] NSWSC 1670

Because the proceedings were settled by consent without determination on the merits, the Court could not make findings about the disputed terms of the 1995 agreement or whether the defendant's delay was wrongful. The plaintiff's claims were plainly arguable and not hopeless or baseless, the asserted Calderbank offer was not in evidence and was not shown to be more favourable than the consent orders, and even if UCPR r 42.20 applied to the dismissed part of the Summons it was appropriate to depart from its default position. Neither party was shown to have acted unreasonably, so each party should bear its own costs.

Jurisdiction
Australia
Judgment Date
28 November 2019
Procedural Posture
Costs Determination in Equity Proceedings Concerning Alleged Agreement to Transfer a Half Share in Property and Relief Under S 66 G of the Conveyancing Act 1919 (nsw) / On the Papers After Settlement by Consent Orders, With Costs Remaining in Dispute
Outcome
Each party was ordered to pay its own costs of the proceedings.
Legal Topics
['proceedings Resolved Without Determination on the Merits' 'consent Orders' 'dismissal of Proceedings' 'specific Performance of Alleged Property Transfer Agreement' 'appointment of Trustees for Sale' 'calderbank Offer' 'court Annexed Mediation']
['costs' 'civil Procedure' 'equity' 'property Law'] ['proceedings Resolved Without Determination on the Merits' 'consent Orders' 'dismissal of Proceedings' 'specific Performance of Alleged Property Transfer Agreement' 'appointment of Trustees for Sale' 'calderbank Offer' 'court Annexed Mediation']

Case Brief

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Procedural Posture

Costs Determination in Equity Proceedings Concerning Alleged Agreement to Transfer a Half Share in Property and Relief Under S 66 G of the Conveyancing Act 1919 (nsw) / On the Papers After Settlement by Consent Orders, With Costs Remaining in Dispute

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiff's costs because the defendant allegedly engaged in delaying tactics and failed to facilitate registration of the transfer before proceedings were commenced." "Whether the plaintiff should pay the defendant's costs because the relief sought in the Summons was allegedly defective or unavailable." "Whether an asserted Calderbank offer justified an order that the plaintiff pay the defendant's costs." 'Whether Uniform Civil Procedure Rules 2005 (NSW), r 42.20 applied to the consent dismissal of the Summons and, if so, whether the Court should depart from its default position.' 'Whether either party acted unreasonably in the commencement, maintenance or conduct of the proceedings.']

Ratio Decidendi

Because the proceedings were settled by consent without determination on the merits, the Court could not make findings about the disputed terms of the 1995 agreement or whether the defendant's delay was wrongful. The plaintiff's claims were plainly arguable and not hopeless or baseless, the asserted Calderbank offer was not in evidence and was not shown to be more favourable than the consent orders, and even if UCPR r 42.20 applied to the dismissed part of the Summons it was appropriate to depart from its default position. Neither party was shown to have acted unreasonably, so each party should bear its own costs.

Court Disposition

Each party was ordered to pay its own costs of the proceedings.

Orders

  • ['Order that each party pay its own costs of the proceedings.']