The Owners – Strata Plan 70030 v Decon Australia (No 2) [2016] NSWSC 21

The Owners – Strata Plan 70030 v Decon Australia (No 2) [2016] NSWSC 21

Although the plaintiff succeeded on its amended notice of motion, the plaintiff had required the Court's indulgence because it had failed to present its case properly within earlier directions, its conduct of the proceedings had been appalling, and the orders caused real and distinct prejudice to the second to fifth defendants whose opposition was justifiable; accordingly the plaintiff, not the developers, should bear their costs of the plaintiff's amended notice of motion.

Jurisdiction
Australia
Judgment Date
01 February 2016
Procedural Posture
Costs in Equity Technology and Construction List Proceedings / Determination of Costs of Notices of Motion After the Plaintiff Was Granted Leave to Amend Its List Statement and Rely on Specified Evidence
Outcome
Plaintiff ordered to pay the second to fifth defendants' costs of the plaintiff's amended notice of motion; first defendant ordered to pay the plaintiff's costs of that notice of motion; no order as to costs of the second to fifth defendants' amended notice of motion; first defendant's notice of motion dismissed...
Legal Topics
['costs of Notice of Motion' 'leave to Amend List Statement' 'leave to Rely on Further Evidence' 'prejudice' 'costs Where Successful Party Sought an Indulgence']
['civil Procedure' 'costs'] ['costs of Notice of Motion' 'leave to Amend List Statement' 'leave to Rely on Further Evidence' 'prejudice' 'costs Where Successful Party Sought an Indulgence']

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Procedural Posture

Costs in Equity Technology and Construction List Proceedings / Determination of Costs of Notices of Motion After the Plaintiff Was Granted Leave to Amend Its List Statement and Rely on Specified Evidence

Legal Issues

  1. 1 ["Whether the successful plaintiff should recover costs of its amended notice of motion or pay the second to fifth defendants' costs because of prejudice and the need for an indulgence." "Whether any order should be made as to costs of the second to fifth defendants' amended notice of motion." "Whether the first defendant should pay the plaintiff's costs where it did not appear at the hearing."]

Ratio Decidendi

Although the plaintiff succeeded on its amended notice of motion, the plaintiff had required the Court's indulgence because it had failed to present its case properly within earlier directions, its conduct of the proceedings had been appalling, and the orders caused real and distinct prejudice to the second to fifth defendants whose opposition was justifiable; accordingly the plaintiff, not the developers, should bear their costs of the plaintiff's amended notice of motion.

Court Disposition

Plaintiff ordered to pay the second to fifth defendants' costs of the plaintiff's amended notice of motion; first defendant ordered to pay the plaintiff's costs of that notice of motion; no order as to costs of the second to fifth defendants' amended notice of motion; first defendant's notice of motion dismissed...

Orders

  • ["Order the plaintiff to pay the second to fifth defendants' costs of the plaintiff's amended notice of motion." "Order the first defendant to pay the plaintiff's costs of that notice of motion." "Make no order as to the costs of the second to fifth defendants' amended notice of motion filed in court today."...