The Owners – Strata Plan No. 13631 v McGrath (No 2) [2017] NSWSC 163

The Owners – Strata Plan No. 13631 v McGrath (No 2) [2017] NSWSC 163

The offer made by the Owners Corporation was a mixed offer: both parties enjoyed partial success. Therefore, r 42.13A does not apply. The court exercised its general discretion under s 98 of the Civil Procedure Act, declining to make a costs order in compromise of the proceedings as neither party acted unreasonably enough to warrant an award. Costs of the application are awarded to the Owners Corporation as the usual rule that costs follow the event applies.

Jurisdiction
Australia
Judgment Date
01 March 2017
Procedural Posture
Judicial Review, Costs Application / Post Settlement, Costs Decision
Outcome
Each party bears its own costs of the proceedings; Mr McGrath to pay Owners Corporation's costs of this application.
Legal Topics
['costs' 'judicial Review' 'mixed Offers' 'court Discretion']
['civil Procedure'] ['costs' 'judicial Review' 'mixed Offers' 'court Discretion']

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Procedural Posture

Judicial Review, Costs Application / Post Settlement, Costs Decision

Legal Issues

  1. 1 ['Whether a mixed offer precludes application of UCPR r 42.13A for costs' 'Exercise of costs discretion following settlement between parties' 'Appropriate costs order considering prior enforcement action']

Ratio Decidendi

The offer made by the Owners Corporation was a mixed offer: both parties enjoyed partial success. Therefore, r 42.13A does not apply. The court exercised its general discretion under s 98 of the Civil Procedure Act, declining to make a costs order in compromise of the proceedings as neither party acted unreasonably enough to warrant an award. Costs of the application are awarded to the Owners Corporation as the usual rule that costs follow the event applies.

Court Disposition

Each party bears its own costs of the proceedings; Mr McGrath to pay Owners Corporation's costs of this application.

Orders

  • ['Each party is to bear its own costs of the proceedings.' "Mr McGrath is to pay the Owners Corporation's costs of this application assessed on the ordinary basis."]