Moussa v Owners Corporation of Strata Plan 65404 & Ors (No 2) [2008] NSWLEC 121

Moussa v Owners Corporation of Strata Plan 65404 & Ors (No 2) [2008] NSWLEC 121

The circumstances displaced the presumptive rule against costs in the Class 2 proceedings because the applicant sought extensions and amendments arising from its own decisions and delays, advanced an unpersuasive and time-consuming approach to amendment of the contract, and sought relief that would directly circumscribe the respondents' proprietary rights for an additional 12 months, while the respondents were wholly successful. No apportionment was appropriate because the Class 2 and Class 4 proceedings were interlinked, the respondents' defences were reasonably arguable and not separable, and the bulk of the time arose from the applicant's evidence and claims for relief rather than any...

Jurisdiction
Australia
Judgment Date
31 March 2008
Procedural Posture
Costs Application in Interlinked Class 2 and Class 4 Proceedings / Determined in Chambers on Written Submissions After Dismissal of the Substantive Applications
Outcome
Applicant ordered to pay the respondents' costs of both proceedings.
Legal Topics
['costs Following the Event' 'presumptive No Costs Order in Class 2 Proceedings' 'fair and Reasonable Costs Orders' 'apportionment of Costs' 'strata Development Contract']
['costs' 'civil Procedure' 'land and Environment' 'strata Development'] ['costs Following the Event' 'presumptive No Costs Order in Class 2 Proceedings' 'fair and Reasonable Costs Orders' 'apportionment of Costs' 'strata Development Contract']

Case Brief

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Procedural Posture

Costs Application in Interlinked Class 2 and Class 4 Proceedings / Determined in Chambers on Written Submissions After Dismissal of the Substantive Applications

Legal Issues

  1. 1 ['Whether it was fair and reasonable to make a costs order in the Class 2 proceedings despite the presumptive rule against costs.' "Whether the respondents' lack of success on some issues in the Class 4 proceedings justified apportionment of costs." "Whether the applicant should pay the respondents' costs of both proceedings."]

Ratio Decidendi

The circumstances displaced the presumptive rule against costs in the Class 2 proceedings because the applicant sought extensions and amendments arising from its own decisions and delays, advanced an unpersuasive and time-consuming approach to amendment of the contract, and sought relief that would directly circumscribe the respondents' proprietary rights for an additional 12 months, while the respondents were wholly successful. No apportionment was appropriate because the Class 2 and Class 4 proceedings were interlinked, the respondents' defences were reasonably arguable and not separable, and the bulk of the time arose from the applicant's evidence and claims for relief rather than any...

Court Disposition

Applicant ordered to pay the respondents' costs of both proceedings.

Orders

  • ["The applicant is ordered to pay the respondents' costs of proceedings 20096 of 2007 and 40097 of 2007, as agreed or assessed."]