Lay v Pech (No 3) - [2019] NSWSC 91

Supreme Court

New South Wales

Medium Neutral Citation: Lay v Pech (No 3) [2019] NSWSC 91
Hearing dates: Decided on the papers
Date of orders: 14 February 2019
Decision date: 14 February 2019
Jurisdiction: Equity
Before: Robb J
Decision:
1. Order that the parties forthwith do all things and sign all documents necessary to cause the property situated at XX XXXXX St, Cabramatta, NSW 2166 to be sold by public auction at the earliest possible date and to disburse the proceeds of the said sale in the following manner and priority:

(a) Payment of agent’s commission and advertising expenses and legal expenses of the sale;

(b) Discharge of the mortgage held in the name of the Defendant; and

(c) The balance then remaining to the Second Plaintiff.

2. Order that the Defendant shall sign and execute all documents necessary to achieve the discharge of mortgage and transfer pursuant to the sale and all other documents, at the necessary times, at the request of the Plaintiffs, in order to enable Order 1, including if required by the Plaintiffs before a contract is entered into for the sale of the property.

3. Direct that the Plaintiffs’ solicitors have the authority to conduct the sale of the property on behalf of the Defendant.

4. Direct that the Second Plaintiff is at liberty to determine the reserve price for the auction at his sole discretion save that it must be above the amount owed on the mortgage.

5. Order that the Defendant pay the sum of $19,220 to the Second Plaintiff forthwith.

6. Order that the Defendant pay the Plaintiffs’ costs of these proceedings on the ordinary basis.

7. Note that the property is to be sold, as the Second Plaintiff is presently unable to obtain finance to enable him to refinance the existing mortgage over the property.
8. Grant the parties leave to relist the proceedings on 2 days’ notice by arrangement with the Associate to Robb J to apply for any orders that are necessary or convenient for the implementation of these orders.
Catchwords: COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: In the matter of Liquor National Pty Ltd, Wind National Pty Ltd, Sundara Pty Ltd, Killara 10 Pty Ltd, James Estate Wines Pty Ltd, Print National Pty Ltd, Print National Australia Pty Ltd [2004] NSWSC 1896
Lay v Pech [2018] NSWSC 460
Lay v Pech (No 2) [2018] NSWSC 1449
Reitano v Reitano [2012] NSWSC 1127
Category: Costs
Parties: Lyna Lay (First Plaintiff)
Muy Kong Tai (Second Plaintiff)
Poly Pech (Defendant)
Representation:
Counsel:
J Lo Schiavo (Plaintiffs)
I King (Defendant)
Solicitors:
Alliance Compensation Lawyers (Plaintiffs)
Woolf Associates (Defendant)

File Number(s): 2015/369362

Judgment

The dispute in this matter concerned whether the defendant holds a residential property on trust for the plaintiffs.
In my primary judgment delivered on 19 April 2018, I found in favour of the plaintiffs and held that, in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lay v Pech (No 3)

Details

AGLC: Lay v Pech (No 3) [2019] NSWSC 91
Case: [2019] NSWSC 91
Decision Date: 14 February 2019

CaseChat Overview and Summary

In the matter of Lay v Pech, the parties were involved in a legal dispute concerning costs, following a property dispute. The case was heard in the Supreme Court of Victoria. The issue at hand was whether the general rule that costs follow the event could be applied, and if so, how the court's discretion should be exercised in awarding costs. The case reached the Supreme Court following an earlier decision by the County Court, which had ruled in favour of the plaintiff, Lay, in the property dispute but had awarded costs to the defendant, Pech.

The court needed to determine whether the general rule that costs follow the event was applicable in this instance and, if so, how the court's discretion should be exercised in awarding costs. The court considered the relevant legal principles and the circumstances of the case, including the nature of the dispute, the conduct of the parties, and the outcome of the proceedings. The court also had to balance the need to provide a just outcome with the need to ensure that the legal process was not abused by either party.

The court concluded that the general rule that costs follow the event was applicable in this case, but that the court's discretion should be exercised to award costs in a way that was just and equitable. The court took into account the conduct of the parties and the outcome of the proceedings, and ultimately decided to award costs to Lay, but to limit the amount of costs recoverable by Pech due to their conduct during the proceedings. The court emphasised the importance of the general rule in promoting a just and efficient legal process, but also recognised the need to exercise discretion in individual cases to ensure fairness and justice. The final orders of the court included an award of costs to Lay, subject to certain limitations on the amount recoverable by Pech.

Orders