Vella v Nergl Developments Pty Ltd & Ors (No. 4) [2021] NSWSC 1652

Vella v Nergl Developments Pty Ltd & Ors (No. 4) [2021] NSWSC 1652

The appropriate costs order was that Nergl pay 40% of Mrs Vella's costs incurred from 14 October 2020 to the date of orders, excluding costs already dealt with by Order (3) made on 9 June 2021. This reflected an impressionistic assessment of mixed success: Nergl had some but relatively insignificant success on slip rule issues and took reasonable positions in negotiating the Deed and s 88B instrument, while Mrs Vella was substantially successful on removal of the caveats. The drafting process for final relief was a new and different process from the substantive liability contest and did not justify applying the same 80% costs percentage as the principal judgment.

Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Costs and Land Law Proceedings Concerning Easements and a Conveyancing Act 1919, S 88 B Instrument / Post Judgment Determination of Final Form of S 88 B Instrument and Costs Incurred Since the Principal Judgment
Outcome
First defendant ordered to pay 40% of the plaintiff's costs incurred since the principal judgment, excluding costs already provided for in Order (3) of the orders made on 9 June 2021; the parties' agreed form of the s 88B instrument was noted.
Legal Topics
['easements' 'registration of Easements' 'conveyancing Act 1919, S 88 B Instrument' 'deed of Release' 'caveats' 'post Judgment Costs']
['costs' 'land Law' 'equity'] ['easements' 'registration of Easements' 'conveyancing Act 1919, S 88 B Instrument' 'deed of Release' 'caveats' 'post Judgment Costs']

Case Brief

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Procedural Posture

Costs and Land Law Proceedings Concerning Easements and a Conveyancing Act 1919, S 88 B Instrument / Post Judgment Determination of Final Form of S 88 B Instrument and Costs Incurred Since the Principal Judgment

Legal Issues

  1. 1 ['What costs order should be made for the period since the principal judgment on 13 October 2020.' 'Whether the costs order should operate from 14 October 2020 or from 9 June 2021.' "How the parties' mixed success on slip rule issues, caveat removal, damages issues, and settlement of the Deed and s 88B instrument should be reflected in costs." 'Final form of the Conveyancing Act 1919, s 88B instrument.']

Ratio Decidendi

The appropriate costs order was that Nergl pay 40% of Mrs Vella's costs incurred from 14 October 2020 to the date of orders, excluding costs already dealt with by Order (3) made on 9 June 2021. This reflected an impressionistic assessment of mixed success: Nergl had some but relatively insignificant success on slip rule issues and took reasonable positions in negotiating the Deed and s 88B instrument, while Mrs Vella was substantially successful on removal of the caveats. The drafting process for final relief was a new and different process from the substantive liability contest and did not justify applying the same 80% costs percentage as the principal judgment.

Court Disposition

First defendant ordered to pay 40% of the plaintiff's costs incurred since the principal judgment, excluding costs already provided for in Order (3) of the orders made on 9 June 2021; the parties' agreed form of the s 88B instrument was noted.

Orders

  • ['The Court notes that the parties have agreed on the form of the s 88B instrument in accordance with "Attachment A".' "Order that the first defendant pay 40% of the plaintiff's costs of these proceedings incurred between 14 October 2020 and today but excluding the costs provided for in Order (3) of the orders made...