Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648

Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648

Mrs Vella was substantially but not wholly successful, warranting that Nergl pay 80% of her costs, taking account of Nergl's limited success on a severable issue. Kindelon's filing of a submitting appearance before trial, with no active participation in the litigation thereafter and absent evidence of Nergl's insolvency, does not justify a costs order against it. Mrs Vella is to pay 60% of the common costs of the first and fourth defendants in relation to the costs determination issue.

Jurisdiction
Australia
Judgment Date
09 June 2021
Procedural Posture
Equity Proceedings (costs Determination) / Costs Judgment Following Trial and Earlier Substantive Judgment [2020] NSWSC 1405
Outcome
Costs orders made as follows: the first and fourth defendants to pay 80% of the plaintiff's costs of the proceedings up to 30 October 2019; the first defendant to pay 80% of the plaintiff's costs thereafter excluding determination of issues of costs; the plaintiff to pay 60% of the common costs of the first and...
Legal Topics
['costs' 'costs Following the Event' 'submitting Appearance' 'party Success and Partial Success' 'costs Orders Against Related Entities']
['equity' 'civil Procedure'] ['costs' 'costs Following the Event' 'submitting Appearance' 'party Success and Partial Success' 'costs Orders Against Related Entities']

Case Brief

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Procedural Posture

Equity Proceedings (costs Determination) / Costs Judgment Following Trial and Earlier Substantive Judgment [2020] NSWSC 1405

Legal Issues

  1. 1 ['Whether costs should follow the event and in what proportion' 'Whether a costs order should be made against the fourth defendant who filed a submitting appearance' 'Whether the plaintiff or defendants should bear common costs of the costs determination']

Ratio Decidendi

Mrs Vella was substantially but not wholly successful, warranting that Nergl pay 80% of her costs, taking account of Nergl's limited success on a severable issue. Kindelon's filing of a submitting appearance before trial, with no active participation in the litigation thereafter and absent evidence of Nergl's insolvency, does not justify a costs order against it. Mrs Vella is to pay 60% of the common costs of the first and fourth defendants in relation to the costs determination issue.

Court Disposition

Costs orders made as follows: the first and fourth defendants to pay 80% of the plaintiff's costs of the proceedings up to 30 October 2019; the first defendant to pay 80% of the plaintiff's costs thereafter excluding determination of issues of costs; the plaintiff to pay 60% of the common costs of the first and...

Orders

  • ["The first and fourth defendants are ordered to pay 80% of the plaintiff's costs of these proceedings up to 30 October 2019, jointly and severally." "The first defendant is ordered to pay 80% of the plaintiff's costs of these proceedings after 30 October 2019, excluding the costs of determining the costs of these...