Martinez v Park Trent Properties Group Pty Limited

[2016] NSWSC 811

Supreme Court

New South Wales

Medium Neutral Citation:	Martinez v Park Trent Properties Group Pty Limited [2016] NSWSC 811
Hearing dates:	16 June 2016
Decision date:	16 June 2016
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The part heard notice of motion of the defendant of 2 February 2016 not being pressed, it is dismissed. (2) The part heard notice of motion of the defendant of 22 February 2016 not being pressed, it is dismissed. (3) No order as to costs.
Catchwords:	PROCEDURE – dismissal of two notice of motions by consent – no order as to costs
Category:	Procedural and other rulings
Parties:	Juan Jose Martinez as Trustee for the Martinez HWL Practice Trust & Ors Trading as HWL Ebsworth Lawyers (Plaintiff) Park Trent Properties Group Pty Limited (Defendant)
Representation:	Counsel: F Assaf (Plaintiff) E Young (Defendant)   Solicitors: HWL Ebsworth Lawyers (Plaintiff) Christopher Adams Lawyers (Defendant)
File Number(s):	2016/14475

ex tempore Judgment

1. As the transcript of the directions hearing conducted urgently by me on 10 June 2016 shows, these two motions were stood over by consent on 2 March 2016, both parties being confident that the substantive dispute would settle. Regrettably, it did not settle, and, in light of the period during which the matters were part-heard before me, I respectfully insisted that the motions be resolved very promptly.

2. They have been resolved, in that neither motion is pressed by the moving party, Park Trent Properties Group, the defendant in the substantive proceedings. I understand that to be because they have been very much overtaken by supervening events.

3. I also understand that there is a fresh dispute, encapsulated in a motion of the plaintiff, to whom I shall refer for convenience as Ebsworths, (which motion is not before me) about whether a putative settlement can in effect be compelled against the defendant.

4. At the start of the hearing, I understood that it remained only to determine a circumscribed dispute about what order I should make about the costs of the motion.

5. Contrary to the written submissions of the defendant, to my mind it would be impossible for me to descend into the realm of the hypothetical, and determine what would have been the result of the two motions, they not having been pressed.

6. Contrary to the written submissions of the plaintiff, I do not think that costs of this matter – already delayed by many months as it is – should be adjourned to await the outcome of an entirely separate motion, which, as I have said, is not before me in any event. Nor do I think that another judge of this Court should be burdened in the future with this dispute about the costs of two motions that were before me some months ago.

7. Having said that, at the end of the hearing before me the parties agreed that I should make no order as to costs – from the perspective of the plaintiff at least, so as not to forestall a broader submission that will be made as part of the third notice of motion.

8. It is true that, generally speaking, if a party files a notice of motion and that motion is subsequently not pressed, and thereby occasions expense to its opponent on the motion, one would usually expect an order for costs against the moving party.

9. But in light of the circumstances that have now been elucidated, and in light of the express agreement of each party that I should simply make no order as to costs, I am content to make that order.

10. Finally, contrary to the submissions of the defendant, in light of my lack of deep understanding of events as they have developed over the past months, I do not propose to make any notations to my orders.

11. I make the following orders by consent:

1. The part heard notice of motion of the defendant of 2 February 2016 not being pressed, it is dismissed.

2. The part heard notice of motion of the defendant of 22 February 2016 not being pressed, it is dismissed.

3. No order as to costs.

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