Eliezer v The Owners – Strata Plan No. 51682 [2020] NSWSC 1596

Eliezer v The Owners – Strata Plan No. 51682 [2020] NSWSC 1596

The plaintiff did not establish that the challenged costs orders were made against good faith or that there was sufficient cause to vary or set them aside. Conduct occurring after the costs orders was irrelevant to whether those orders were procured against good faith, and the plaintiff's allegations concerning Local Court and District Court proceedings did not establish that the Supreme Court costs orders, made after interlocutory hearings in which the plaintiff was unsuccessful, were obtained by misconduct or dishonourable conduct. The orders were conventional costs-follow-the-event orders, and the principle of finality supported dismissal of the motion.

Jurisdiction
Australia
Judgment Date
05 November 2020
Procedural Posture
Notice of Motion to Vary or Set Aside Costs Orders Under R 36.15 of the Uniform Civil Procedure Rules 2005 / Motion Dismissed in the Supreme Court of New South Wales, Common Law Division
Outcome
Notice of Motion dismissed.
Legal Topics
['setting Aside or Varying Orders' 'ucpr R 36.15' 'orders Made Against Good Faith' 'finality of Litigation' 'costs Follow the Event']
['civil Procedure' 'costs' 'judgments and Orders'] ['setting Aside or Varying Orders' 'ucpr R 36.15' 'orders Made Against Good Faith' 'finality of Litigation' 'costs Follow the Event']

Case Brief

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Procedural Posture

Notice of Motion to Vary or Set Aside Costs Orders Under R 36.15 of the Uniform Civil Procedure Rules 2005 / Motion Dismissed in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ['Whether the costs orders made on 15 March 2017, 9 May 2017 and 15 June 2017 should be varied so that they did not apply in favour of the second to eleventh defendants.' 'Whether the costs orders were made irregularly, illegally or against good faith within r 36.15(1) of the Uniform Civil Procedure Rules 2005.' 'Whether the plaintiff established sufficient cause to set aside or vary the costs orders.' 'What costs order should be made on the current Notice of Motion.']

Ratio Decidendi

The plaintiff did not establish that the challenged costs orders were made against good faith or that there was sufficient cause to vary or set them aside. Conduct occurring after the costs orders was irrelevant to whether those orders were procured against good faith, and the plaintiff's allegations concerning Local Court and District Court proceedings did not establish that the Supreme Court costs orders, made after interlocutory hearings in which the plaintiff was unsuccessful, were obtained by misconduct or dishonourable conduct. The orders were conventional costs-follow-the-event orders, and the principle of finality supported dismissal of the motion.

Court Disposition

Notice of Motion dismissed.

Orders

  • ['Notice of Motion filed 18 October 2020 by the plaintiff is dismissed.' 'The plaintiff is to pay the costs of the second to fourth defendants (inclusive).' 'The fifth to eleventh defendants (inclusive) are to pay their own costs of the Notice of Motion.']