Ginelle Pty Limited v Sharon McWeeney

In the case of Ginelle Pty Limited v Sharon McWeeney, the plaintiff, a mortgagee, initiated proceedings for possession against the defendants, who were tenants of the mortgaged property. Following the institution of the proceedings, an agreement was reached between the parties, allowing the tenants to remain in the property until a specified date. However, the defendants did not vacate the property as stipulated in the agreement, leading the plaintiff to seek orders to vacate and subsequently a motion for contempt and costs. By the time the motion for costs was brought, the defendants had vacated the property, and the contempt motion was no longer pursued. Notably, the second and third defendants did not appear in court after the orders to vacate were issued and were not served with the contempt application. The court was required to determine whether a cost order should be made, whether any order against the second and third defendants should include the costs of the contempt application, and whether any costs order should be stayed pending the first defendant initiating proceedings against the plaintiff or the landlord.

The primary legal issues revolved around the circumstances under which a cost order could be made against the defendants, particularly given the non-attendance and non-representation of the second and third defendants in the proceedings. Additionally, the court needed to assess whether the costs associated with the contempt application should be included in any order against the defendants. Furthermore, the court had to consider whether any costs order should be deferred pending any potential proceedings brought by the first defendant against the plaintiff or the landlord.

The court found that a costs order could be made against the defendants, noting that the first defendant had been adequately represented throughout the proceedings. However, the court determined that the costs of the contempt application should not be included in the order against the second and third defendants, as they were not represented and were not served with the contempt application. The court also ruled that any costs order should be stayed pending the first defendant initiating proceedings against the plaintiff or the landlord. This decision ensured that the defendants' rights were protected and that the court's orders were both fair and just.

The court ordered that costs be awarded to the plaintiff against the first defendant, but stayed the order pending any proceedings brought by the first defendant against the plaintiff or the landlord. The costs of the contempt application were not to be included in the order against the second and third defendants.