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 applicationLegislation 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 51Texts 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
-
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:
Keep reading for free
Create a free CaseChat account to read Hagerty v Hills Central Pty Ltd (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] NSWCA 279
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether a separate hearing regarding costs orders, to which no challenge was made, constituted a separate event for the purposes of awarding costs. Additionally, the Court had to consider whether a special costs order was warranted in light of *Calderbank* correspondence. The Court also addressed an application to vary an order made after the expiry of the 14-day period prescribed by the rules for such applications.
The Court of Appeal held that the separate hearing as to costs orders was not a separate event for the purposes of costs. It found no basis for a special costs order. Furthermore, the Court determined that it lacked the power to extend the time for an application to vary an order made after the prescribed 14-day period, and therefore could not accede to the application.
The Court varied the order of 11 September 2018 to clarify that the respondent was to pay the appellants’ costs at first instance and in the Court of Appeal, with the exception of the costs of the respondent’s motion filed on 28 June 2018 (and amended on 4 July 2018), which were to be paid by the appellants. The appellants were ordered to pay the respondent’s costs of the notices of motion filed on 25 September and 2 October 2018.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.