Hagerty v Hills Central Pty Ltd (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hagerty v Hills Central Pty Ltd (No 2) [2018] NSWCA 279

Hearing dates:

On the papers

Date of orders:

21 November 2018

Decision date:

21 November 2018

Before:

McColl JA; Macfarlan JA; Leeming JA

Decision:

1. Vary order 4 made 11 September 2018 so that it provides:

 

“The respondent pay the appellants’ costs at first instance and in this Court, except the costs at first instance of the respondent’s motion filed on 28 June 2018 (and amended on 4 July 2018), which costs are to be paid by the appellants.”

 2. The appellants pay the respondent’s costs of the notices of motion filed 25 September and 2 October 2018.

Catchwords:

COSTS – whether separate hearing as to orders, to which no challenge was made, was separate event for purposes of costs – Calderbank correspondence – whether special costs order warranted

  JUDGMENTS AND ORDERS – application to vary made after 14 day period prescribed by rules – no power to extend time – no power to accede to application

Legislation Cited:

Uniform Civil Procedure Rules, rr 1.11, 1.12, 36.11, 36.16, 42.1

Cases Cited:

Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133
Hagerty v Hills Central Pty Ltd [2018] NSWCA 200
Hills Central Pty Limited v Anthony Gerard Hagerty & Catherine Elizabeth Hagerty t/a the Executors of the Estate of the late Gladys Delores Hagerty (No 2) [2018] NSWSC 1109
Majak v Rose (No 4) (2017) 94 NSWLR 763; [2017] NSWCA 170
Malouf v Prince (No 2) [2010] NSWCA 51

Texts Cited:

None

Category:

Costs

Parties:

Anthony Gerard Hagerty & Catherine Elizabeth Hagerty as Executors of the Estate of the late Gladys Delores Hagerty (Appellants) 
Hills Central Pty Ltd (Respondent)

Representation:

Counsel:

 

G Farland (Appellants) 
G P Gee (Respondent) 

 

Solicitors:

  Lamrocks Solicitors (Appellants) 
Blackstone Waterhouse Lawyers (Respondent)

File Number(s):

2018/193275

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2018] NSWSC 789

Date of Decision:

31 May 2018

Before:

Slattery J

File Number(s):

2017/258219

Judgment

1. THE COURT: By judgment delivered on 11 September 2018, this Court allowed the appeal by Mr and Ms Hagerty, set aside the judgment and orders made at first instance, removed caveats which had been lodged by the respondent, and ordered the respondent to pay the appellants’ costs at first instance and on appeal: Hagerty v Hills Central Pty Ltd [2018] NSWCA 200. The sole issue on appeal, and in the substantial judgment at first instance, was whether the respondent Hills Central had validly exercised an option to purchase land granted to it by the deceased parents of the appellants. Subsequent to the hearing at which it was held at first instance that Hills Central had validly exercised that option, there was a second hearing, arising out of a separate interlocutory dispute concerning the working out of the order for specific performance which the respondent had obtained: