Franklin Yeezy Holdings atf Franklin Yeezy Holdings Trust v Paligaru (No 2)

[2022] NSWSC 1165

Supreme Court

New South Wales

Medium Neutral Citation:	Franklin Yeezy Holdings atf Franklin Yeezy Holdings Trust v Paligaru (No 2) [2022] NSWSC 1165
Hearing dates:	On the papers; submissions received 1, 22 and 25 August 2022
Date of orders:	31 August 2022
Decision date:	31 August 2022
Jurisdiction:	Equity - Real Property List
Before:	Stevenson J
Decision:	Respondent to pay first defendant’s costs of its application to set aside judgment
Catchwords:	COSTS – where respondent joined as contradictor to first defendant’s application to set aside judgment – where respondent’s evidence revealed reason why judgment should be set aside – whether respondent should pay first defendant’s costs of the application
Cases Cited:	Franklin Yeezy Holdings atf Franklin Yeezy Holdings Trust v Paligaru [2022] NSWSC 933
Category:	Costs
Parties:	Franklin Yeezy Holdings Pty Ltd ACN 619 006 272 as trustee for Franklin Yeezy Holdings Trust (Plaintiff) Ralph Ignatius Paligaru (Applicant/First Defendant) Amreeta Devi Paligaru (Second Defendant) National Australia Bank Ltd (Third Defendant) Reliance Leasing Pty Ltd (Fourth Defendant) DCP Litigation Holdings Pty Ltd (Fifth Defendant) Mark James Smith (Respondent)
Representation:	Counsel: A E Maroya (Applicant/First Defendant) D C Eardley (Respondent) Solicitors: Mahony Law (Applicant/First Defendant) Moscardo Lawyers (Respondent)
File Number(s):	2018/216549

JUDGMENT

1. For the reasons set out in my judgment of 11 July 2022^[1] I set aside a judgment entered against the first defendant, Mr Ralph Paligaru, on 11 September 2020.

   1. Franklin Yeezy Holdings atf Franklin Yeezy Holdings Trust v Paligaru [2022] NSWSC 933.

2. That was because the evidence adduced by Mr Mark Smith, who purported to be Mr Paligaru’s contradictor, showed that the punitive judgment creditor had no standing to enter judgment against Mr Paligaru. ^[2]

   2. See my primary judgment at [12]-[14].

3. Mr Paligaru now seeks an order that Mr Smith pay his costs of the application to set aside the judgment.

4. I am persuaded that I should make such an order because:

1. Mr Smith sought to be joined to the proceedings to be contradictor to Mr Paligaru;

2. he was unsuccessful in resisting Mr Paligaru’s application; and

3. his lack of success was because of the evidence to which I have referred, which evidence Mr Smith should reasonably have understood was fatal to the position he adopted on the application before me.

5. I order that Mark James Smith pay the costs of Mr Paligaru’s Notice of Motion of 2 March 2021.

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Endnotes

Decision last updated: 31 August 2022