Australia and New Zealand Banking Group Limited v Fink (No 2)

[2014] NSWSC 1332

Supreme Court

New South Wales

Case Title:

Australia and New Zealand Banking Group Limited v Fink (No 2)

Medium Neutral Citation:

[2014] NSWSC 1332

Hearing Date(s):

On the papers

Decision Date:

29 September 2014

Jurisdiction:

Common Law

Before:

Adams J

Decision:

(1) The defendants to pay the plaintiff's costs of the plaintiff's notice of motion filed on 11 February 2013.

(2) The defendants to pay the plaintiff's costs of and incidental to its claim for possession in the principal proceedings.

Catchwords:

COSTS - usual order as to costs

Category:

Costs

Parties:

Australia and New Zealand Banking Group Limited (Plaintiff)
Cecile Fink (First Defendant)
Andre Fink (Second Defendant)

Representation

- Counsel:

Counsel:
S Docker (Plaintiff)

- Solicitors:

Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
Spinks Eagle Lawyers (Defendants)

File Number(s):

2012/240914

JUDGMENT

1. In this matter I gave judgment on 4 December 2013 providing, in respect of costs, that the parties were to provide written submissions by 14 February 2014. The plaintiff did so but the defendants have not made any submissions. The plaintiff obtained summary judgment on its claim for possession of the property mortgaged by the defendants, together with leave to issue a writ of possession forthwith in respect of the properties.

2. The plaintiff seeks an order that the defendants pay the plaintiff's costs of the notice of motion seeking summary judgment and an order that the defendants pay the plaintiff's costs for its claims for possession in the proceedings.

3. The usual order is that costs should follow the event: r 42.1 of the UCPR. There is no basis for varying this result and the defendants have not made submissions seeking a different outcome. It is submitted on behalf of the plaintiff that it is appropriate to make separate orders for costs of the notice of motion since this was a discrete matter whilst the plaintiff's for possession in the principal proceedings has now been finally determined and costs should follow the event in respect of this claim.

4. It seems to me that the plaintiff's submission should be accepted. Although there will be overlap between the two costs orders, for obvious reasons, the plaintiff can only recover one amount of costs as to any particular item of expense, although that item related to the notice of motion as well as the principal action. It may well be that the costs of the plaintiff's claim for possession may not be entirely coterminous with the costs of the notice of motion. Against this event, it is appropriate that the orders sought should be made.

5. Accordingly, I order -

   (1)The defendants to pay the plaintiff's costs of the plaintiff's notice of motion filed on 11 February 2013.

   (2)The defendants to pay the plaintiff's costs of and incidental to its claim for possession in the principal proceedings.

   **********