Sotiropoulos v Sotiropoulos [2019] NSWSC 737

Sotiropoulos v Sotiropoulos [2019] NSWSC 737

The plaintiff failed to show any sound reason why the ordinary costs consequence of discontinuance should not apply, so the defendants were entitled to ordinary costs. Indemnity costs were not justified from the commencement of the proceedings because the statement of claim and affidavit provided an arguable basis and the claim was not shown to be hopeless. However, once the plaintiff had formed the view in September 2018 that he would not prosecute the proceedings to hearing, it was unreasonable not to discontinue promptly and thereby avoid the defendants incurring costs of preparing for a five-day hearing. Indemnity costs were therefore ordered from 18 September 2018, the date the...

Jurisdiction
Australia
Judgment Date
19 June 2019
Procedural Posture
Costs Application Following Discontinuance of Equity Proceedings / After the Plaintiff Discontinued the Proceedings; Defendants Sought Costs Including Indemnity Costs
Outcome
Plaintiff ordered to pay defendants' costs on the ordinary basis up to 18 September 2018 and on the indemnity basis after 18 September 2018.
Legal Topics
['costs Following Discontinuance' 'indemnity Costs' 'ordinary Basis Costs' 'unreasonable Continuation of Proceedings']
['civil Procedure' 'costs' 'equity'] ['costs Following Discontinuance' 'indemnity Costs' 'ordinary Basis Costs' 'unreasonable Continuation of Proceedings']

Case Brief

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Procedural Posture

Costs Application Following Discontinuance of Equity Proceedings / After the Plaintiff Discontinued the Proceedings; Defendants Sought Costs Including Indemnity Costs

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendants' costs after discontinuing the proceedings." 'Whether costs should be awarded on an indemnity basis, and from what date.' "Whether the plaintiff's commencement and pursuit of the proceedings was unreasonable or the claim was hopeless."]

Ratio Decidendi

The plaintiff failed to show any sound reason why the ordinary costs consequence of discontinuance should not apply, so the defendants were entitled to ordinary costs. Indemnity costs were not justified from the commencement of the proceedings because the statement of claim and affidavit provided an arguable basis and the claim was not shown to be hopeless. However, once the plaintiff had formed the view in September 2018 that he would not prosecute the proceedings to hearing, it was unreasonable not to discontinue promptly and thereby avoid the defendants incurring costs of preparing for a five-day hearing. Indemnity costs were therefore ordered from 18 September 2018, the date the...

Court Disposition

Plaintiff ordered to pay defendants' costs on the ordinary basis up to 18 September 2018 and on the indemnity basis after 18 September 2018.

Orders

  • ["Order the plaintiff to pay the defendants' costs of the proceedings on the ordinary basis up to 18 September 2018." "Order the plaintiff to pay the defendants' costs of the proceedings on the indemnity basis after 18 September 2018."]