Supreme Court
New South Wales
Medium Neutral Citation: Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas (No 2) [2019] NSWSC 1472 Hearing dates: 4 October 2019 Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The plaintiff is to pay all of the defendant’s costs in relation to and incidental to the proceedings and the notice of motion.
Catchwords: COSTS – defendant successful on notice of motion – plaintiff given opportunity to make submissions as to costs – no submissions received – costs order made in favour of the defendant Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12 Cases Cited: Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas [2019] NSWSC 1376 Category: Costs Parties: Gennacker Pty Ltd trading as Homestead Holiday Park (Plaintiff)
Jacques Fontainas (Defendant)Representation: Counsel:
Solicitors:
A Morris QC/L A Jurth (Plaintiff)
M McMahon (Defendant)
Worcester & Co Solicitors (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2019/219385 Publication restriction: Nil
Judgment
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On 11 October 2019 pursuant to a notice of motion filed by the defendant, I provided a judgment to the parties declining to exercise jurisdiction in the proceedings pursuant to Rule 12.11(1)(h) of the Uniform Civil Procedure Rules 2005 (NSW): Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas [2019] NSWSC 1376.
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I made orders requesting the plaintiff file and serve written submissions by 18 October 2019 as to any alternative costs order for which it contends, noting that the defendant had sought a costs order that the plaintiff pay all of the defendant’s costs in relation to and incidental to the proceedings and the notice of motion.
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No submissions were received.
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Given the defendant succeeded in full on its notice of motion, and given my finding that the proceedings – still in their early stages – should have been commenced as an appeal in the New South Wales Civil and Administrative Tribunal and not this court, the proper costs order that reflects those findings is in the form of the order sought by the defendant.
Order
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The plaintiff is to pay all of the defendant’s costs in relation to and incidental to the proceedings and the notice of motion.
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- AGLC
- Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas (No 2) [2019] NSWSC 1472
- Case
- [2019] NSWSC 1472
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances surrounding the motion and the plaintiff's inaction in responding to the costs application. The plaintiff was provided with an opportunity to make submissions as to why costs should not be awarded to the defendant, yet they chose not to do so. The court noted that this was a significant factor in determining whether to make a costs order against the plaintiff. The court considered the plaintiff's conduct in not providing any submissions, which indicated a lack of opposition to the defendant's costs application.
The court ultimately concluded that, given the plaintiff's inaction and the defendant's success on the motion, it was appropriate to make a costs order in favour of the defendant. The plaintiff's failure to make any submissions in response to the defendant's costs application was a decisive factor. The court found that the defendant was entitled to be compensated for the costs incurred in pursuing the motion. Consequently, the court issued an order that the plaintiff was to pay the defendant's costs of the motion.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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