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Bale v Kimberley Developments Pty Ltd

Bale v Kimberley Developments Pty Ltd

Case [2023] NSWSC 1219 13 October 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Bale v Kimberley Developments Pty Ltd & Ors [2023] NSWSC 1219
Hearing dates: 7 September 2023
Date of orders: 13 October 2023
Decision date: 13 October 2023
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision:
Defendants ordered to pay the plaintiff’s costs of the motion on the ordinary basis. Plaintiff’s costs of the motion fixed in the sum of $7,700.

Catchwords:
COSTS – costs follow the event – complex proceedings in which a property transaction ordered as part of final relief – property transaction cannot be implemented without the defendants causing the removal of a caveat – defendants oppose removal of the caveat – plaintiff successful on motion to remove the caveat in order to implement the property transaction – prior agreement between the parties resolving costs issues between them with respect to trial and appeal proceedings – whether the Court should make any costs order in the circumstances – whether the defendants should pay the plaintiff’s costs of the motion – whether any order for costs should be on the indemnity basis – whether the Court should make a specified gross sum order instead of assessed costs.

Legislation Cited:
Civil Procedure Act 2005, s 98(4)(c)

Cases Cited:
Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820
Bale v Kimberley Developments Pty Ltd (No. 2) [2022] NSWSC 1009
Bale v Kimberley Developments Pty Ltd (No. 3) [2023] NSWSC 973
Grant v John Grant and Sons (1954) 91 CLR 112
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738
Karam v ANZ Banking Group Ltd [2001] NSWSC 709
Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25
Kimberley Developments Pty Ltd v Bale (No 2) [2023] NSWCA 95
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069
Re Minister for Immigration and Ethnic Affairs; Ex parte Li Qin [1997] HCA 6; (1997) 186 CLR 622
Salkeld v Vernon (1758) 1 Eden 64, 28 ER 608

Category: Procedural rulings
Parties: Plaintiff: Francois Bale
First Defendant: Kimberley Developments Pty Ltd
Second Defendant: Albert Darwiche
Third Defendant: Martin Churchill
Fourth Defendant: Chyna Schein
Fifth Defendant: Theofanis Trigas
Sixth Defendant: Super Start Batteries Pty Ltd
Representation:
Counsel:
Plaintiff: D. O’Connor
Solicitors:
Plaintiff: SCB Legal
First, Second, Fifth and Sixth Defendants: N. Weinberger, Weinberger Lawyers

File Number(s): 2018/237019
Publication restriction: No

Judgment

The plaintiff, Ms Françoise Bale, brought a motion in the duty list in these proceedings on 7 September 2023. The motion resolved except for questions of costs, and she now seeks the costs of her motion. The remaining active defendants in the proceedings, the first, second, fifth, and sixth defendants resisted the relief the plaintiff sought on the motion and now resist the making of any order for costs against them. For convenience, in these reasons this sub – group of active defendants will be referred to as “the defendants”.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bale v Kimberley Developments Pty Ltd

Details

AGLC: Bale v Kimberley Developments Pty Ltd [2023] NSWSC 1219
Case: [2023] NSWSC 1219
Decision Date: 13 October 2023

CaseChat Overview and Summary

In the matter of Bale v Kimberley Developments Pty Ltd, the dispute centred around a property transaction, with the plaintiff seeking the implementation of an order made by the Court as part of the final relief. The defendants, however, opposed the removal of a caveat that was obstructing the completion of the transaction. The plaintiff was successful in a motion to have the caveat removed, enabling the property transaction to proceed. Prior to these proceedings, the parties had entered into an agreement that addressed the issue of costs related to both the trial and appeal stages. Given the successful motion to remove the caveat, the Court was tasked with determining whether it should make any order for costs, specifically whether the defendants should be required to pay the plaintiff's costs of the motion, and if any such order should be made on an indemnity basis. Additionally, the Court had to consider whether a specified gross sum order might be more appropriate than the usual assessed costs.

The Court examined the circumstances surrounding the motion to remove the caveat and noted the prior agreement between the parties concerning costs. It acknowledged that the defendants had opposed the removal of the caveat, thereby delaying the execution of the property transaction ordered by the Court. The Court held that the defendants should bear the costs of the motion as they were the ones who had caused the delay by opposing the removal of the caveat. Given the complexity of the proceedings and the prior agreement, the Court determined that the costs should be awarded on an indemnity basis, reflecting the need for the defendants to compensate the plaintiff fully for the additional legal expenses incurred due to their opposition.

The Court ultimately made an order that the defendants were to pay the plaintiff’s costs of the motion on an indemnity basis. The Court considered the overall context of the proceedings, the prior agreement, and the need to ensure that the plaintiff was adequately compensated for the additional costs incurred as a result of the defendants' opposition to the removal of the caveat. The Court declined to make a specified gross sum order, instead opting for assessed costs to accurately reflect the actual expenses incurred by the plaintiff.

Orders