BMW Australia Finance Ltd v Trigas (No. 2)
[2022] NSWDC 342
•16 August 2022
District Court
New South Wales
Medium Neutral Citation: BMW Australia Finance Ltd v Trigas (No. 2) [2022] NSWDC 342 Hearing dates: On the papers Date of orders: 16 August 2022 Decision date: 16 August 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Order the defendant to pay the plaintiff’s costs of the Notice of Motion filed by the defendant on 11 March 2022.
Catchwords: COSTS – order sought by plaintiff for costs of a Notice of Motion not pursued by the defendant
Cases Cited: BMW Australia Finance Ltd v Trigas [2022] NSWDC 279
Category: Costs Parties: BMW Australia Finance Ltd (Plaintiff)
Arthur Trigas (Defendant)Representation: Counsel:
Solicitors:
M Gunning (Plaintiff)
R Perla (Defendant)
Mills Oakley (Plaintiff)
Weinberger Lawyers (Defendant)
File Number(s): 2018/71917
Judgment
Background
-
In these proceedings I gave judgment on 22 July 2022 (First Judgment) in relation to three Notices of Motion: BMW Australia Finance Ltd v Trigas [2022] NSWDC 279. By an email dated 9 August 2022 sent to my Associate, the solicitor for the plaintiff drew attention to the fact that the First Judgment failed to deal with one of the applications made on behalf of the plaintiff.
-
The first motion dealt with by the judgment was filed by the defendant on 11 March 2022 (First Motion). The First Motion sought leave for the defendant to file a cross claim against Mr Shade. Ultimately that motion was not pursued. In the First Judgment that motion was dismissed and an order was made for the defendant to pay the costs of Mr Shade of the Notice of Motion.
-
Pars 6 and 7 of the First Judgment said:
“6 The first Notice of Motion was filed on 11 March 2022 by Mr Trigas. That Notice of Motion sought leave to file a Cross Claim against Mr Shade. Mr Trigas no longer wished to pursue that Notice of Motion or that form of the proposed Cross Claim. The third Notice of Motion (discussed below) sought leave to bring a Cross Claim against Mr Shade, in a more extensive pleading than that associated with the first Notice of Motion.
7 At the hearing on 30 June 2022 I made an order dismissing the defendant’s Notice of Motion filed on 11 March 2022. The parties argued the costs of the first Notice of Motion.”
Plaintiff seeks Costs of the First Motion
-
The email referred to above drew attention to the failure of the First Judgment to deal with a submission made by counsel for the plaintiff, which sought an order for the plaintiff’s costs of the First Motion.
-
The plaintiff and the defendant are content for me to consider the submissions made at the hearing on 30 June 2022, without the need for further attendance at court. The solicitors for Mr Shade indicated that he did not wish to participate in any way in the determination of the further issue, as it did not affect their client.
-
Counsel for the plaintiff sought an order that the defendant pay the plaintiff’s costs of the First Motion. In support of that submission counsel for the plaintiff referred to PX 2 which is the affidavit of Mr Angelakis dated 4 April 2022. Attention was drawn to pars 24-27 of PX 2, in which Mr Angelakis asserted that there was an inconsistency between the Defence of the defendant, and the Proposed Cross Claim then put forward by the defendant.
-
In correspondence referred to in par 25 of PX 2, Mr Angelakis requested the solicitor for the defendant to file an Amended Defence which was consistent with the Proposed Cross Claim. That correspondence said that the defendant in his Defence did not admit entering into the First Agreement and denied entering into the Second Agreement. The correspondence asserted that the Proposed Cross Claim was inconsistent with the Defence because the defendant admitted the First Agreement and admitted the Second Agreement in the Proposed Cross Claim.
-
In my view the plaintiff was justified in raising concerns in relation to the First Motion, even though on its face it did not concern the plaintiff. The defendant chose to abandon the First Motion, and to amend his Defence and pursue a recast Proposed Cross Claim.
-
In my view the appropriate costs order is that the defendant should pay the costs of the plaintiff of the First Motion.
Orders
-
The order to deal with the issue omitted from the First Judgment is:
Order that the defendant pay the plaintiff’s costs of the Notice of Motion filed by the defendant on 11 March 2022.
**********
Decision last updated: 16 August 2022
0