Iacullo v Behrens [Orders and Costs]

[2006] NSWSC 127

CITATION:	Iacullo v Behrens [Orders & Costs] [2006] NSWSC 127
HEARING DATE(S):	24 February 2006
JUDGMENT DATE :	24 February 2006
JUDGMENT OF:	Smart AJ at 1
EX TEMPORE JUDGMENT DATE:	03/06/2006
DECISION:	See para 9
LEGISLATION CITED:	Nil
CASES CITED:	Nil
PARTIES:	Dominic Iacullo & Anor v Uwe Behrens & Anor
FILE NUMBER(S):	SC 5466/04
COUNSEL:	(P) Mr M Ashurst (D) Mr F Gleeson
SOLICITORS:	(P) Michell Sillar (D) Aitken McLachlan Thorpe

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SMART AJ

FRIDAY 24 FEBRUARY 2006

5466/04:

DOMINIC IACULLO & 1 ORS v UWE BEHRENS & 1 ORS [No 2]

JUDGMENT

1 . HIS HONOUR : I have been presented with an amended draft which has been agreed to by the parties save for order number 10. That presently reads:
“The Plaintiffs deliver to the Defendants a discharged mortgage number 8953490K in registrable form, executed by the Plaintiffs within 7 days of the dates of these orders.”


2. Mr Schneider has pointed out that the plaintiffs are concerned that they would have to move for an immediate stay if that order remains in its present form while they consider whether they wish to appeal.

3. The Plaintiffs have already had the judgment for a period of 14 days. It is a long judgment and I do not regard it as unreasonable that they should have a period of 21 days from today to determine whether they wish to file a notice of appeal. It is a case where I regard it as appropriate to grant a stay pending the determination of an appeal if one were lodged.

4. Because of the consequences of the registration of a discharge of mortgage and the possibility of another mortgage to another party being registered, or orders being made in Family Law Proceedings, what I propose to do is to have paragraph 10 read:

“The Plaintiffs deliver to the Defendants a discharge of mortgage number 8953490K in registrable form executed by the Plaintiffs, provided that upon the Plaintiffs filing a notice of appeal within 21 days from today, and upon their undertaking if such an appeal is lodged, to prosecute it diligently, stay the execution of such order for a period of 10 days after the determination of such an appeal by the Court of Appeal, or if no appeal is lodged, for a period of 31 days from today.”


5. The parties have made submissions as to costs. The primary submission made on behalf of the Defendants was that the Plaintiffs should pay the costs of the Defendants. Mr Uwe Behrens, was entirely successful in the proceedings according to my judgment, and there is no sufficient reason why he should not receive an order that the Plaintiffs pay the whole of his costs.

6. Mrs Behrens did not succeed on the claim for conversion. That occupied but a small part of the proceedings. Nor did she obtain an order that she be indemnified in respect of the whole of the liabilities under the three financial leases, but she did obtain orders of indemnity in respect of each one; one as to three-quarters and the others as to one-half. While an order for a Master to hold an inquiry and take accounts was formally sought, that did not become an issue because of the approach that I took.

7. The Plaintiffs enjoyed a small measure of success in relation to one part of the alternative claim for $50,000 and I am told that the $87 has been paid. I think that the correct order in the whole of the circumstances, and in an endeavour not to make a costs assessment unduly complicated, is that the Plaintiffs should pay the whole of the costs of Uwe Behrens of the proceedings and 90 per cent of the costs of Paula Behrens of the proceedings.

8. Exhibits to remain in court for a further 21 days from today, and in the event of an appeal being lodged, remain in court pending a determination of such an appeal. If no appeal is lodged within 21 days the exhibits may be returned.

9. I make the declarations and orders set out in the draft initialled by me and placed with the papers subject to the amendment of paragraph 10 of the orders as earlier recorded. These orders may be entered forthwith.

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