Kerry Albert Pty Ltd t/as Kerry Albert and Co v Fuller (No 2)

The case of Kerry Albert Pty Ltd t/as Kerry Albert and Co v Fuller (No 2) involved a dispute between the plaintiff, Kerry Albert Pty Ltd, and the defendants, Fuller. The plaintiff sought to vary a costs order and to set aside or vary a previous judgment and orders. The case was heard in the Supreme Court of New South Wales. The legal issues before the court included whether the orders made by the court should be set aside on the basis that they were made irregularly, whether the court should exercise its discretion to set aside or vary the judgment or orders, and whether the defendants should be granted leave to reopen the hearing of a Notice of Motion finally determined.

The court considered the nature of the orders made and the discretion available to the court to set them aside or vary them. It was found that the orders were not made irregularly and, therefore, should not be set aside. The court also considered the defendants' application to reopen the hearing of a Notice of Motion finally determined. The court found that the application should be dismissed as the defendants had not demonstrated any grounds for reopening the hearing. In relation to the plaintiff's application to vary the costs order, the court found that the order should be vacated and replaced with a new order for the specified gross sum of $15,684.37.

The court also considered the issue of whether a clause in an agreement was a penalty. It was found that the clause was not a penalty as it did not operate as a deterrent or punishment but rather as a genuine pre-estimate of the loss caused by the breach. The court further considered whether a lump sum costs order should be made in favour of the plaintiff and on what basis. The court found that the order should be made on the basis of the costs of the Notice of Motion filed by the plaintiff on 19 July 2018. The court also heard the parties on the costs of the application and directed that the plaintiff's application in relation to costs was otherwise dismissed. The court further dismissed the Notice of Motion filed by the defendants on 28 September 2018 and ordered that the defendants pay the plaintiff's costs of the Notice of Motion filed on 28 September 2018 as agreed or assessed.