Gong v The Owners – Strata Plan 44560 [2023] NSWSC 157

Gong v The Owners – Strata Plan 44560 [2023] NSWSC 157

The court could not determine that the Defendant acted so unreasonably as to depart from the general rule as to costs on discontinuance, because the evidence did not establish with certainty the final terms of the agreement or that unreasonable conduct of the Defendant necessitated the proceedings. In circumstances where the parties resolved the matter by consent without a final hearing, and in the absence of evidence of unreasonable conduct, the appropriate order is that each party pay their own costs.

Jurisdiction
Australia
Judgment Date
27 February 2023
Procedural Posture
Civil (equity Real Property List) / Costs Application Following Settlement; Leave to Discontinue
Outcome
Leave to discontinue granted; each party to pay its own costs.
Legal Topics
['costs' 'discontinuance of Proceedings' 'easements' 'specific Performance']
['equity' 'real Property'] ['costs' 'discontinuance of Proceedings' 'easements' 'specific Performance']

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Procedural Posture

Civil (equity Real Property List) / Costs Application Following Settlement; Leave to Discontinue

Legal Issues

  1. 1 ['Whether Plaintiffs should be granted leave to discontinue proceedings without adverse costs order' 'Whether Defendant should pay Plaintiffs’ costs due to alleged unreasonable conduct' 'Court’s discretion in costs where proceedings resolved by consent and not determined on merits']

Ratio Decidendi

The court could not determine that the Defendant acted so unreasonably as to depart from the general rule as to costs on discontinuance, because the evidence did not establish with certainty the final terms of the agreement or that unreasonable conduct of the Defendant necessitated the proceedings. In circumstances where the parties resolved the matter by consent without a final hearing, and in the absence of evidence of unreasonable conduct, the appropriate order is that each party pay their own costs.

Court Disposition

Leave to discontinue granted; each party to pay its own costs.

Orders

  • ['The Plaintiffs are granted leave to discontinue the proceedings.' 'The parties are to pay their own costs of the proceedings.']