Munoz v Galnyamaba Friday Creek Pty Limited (No 2)
[2015] NSWSC 1096
•04 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: Munoz v Galnyamaba Friday Creek Pty Limited (No 2) [2015] NSWSC 1096 Hearing dates: 4 August 2015 Decision date: 04 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The defendant must transfer the items listed in Annexure A of the short minutes to the plaintiff by 5 pm on 5 August 2015;
(2) The defendant must transfer the possession and registration of the following items to the plaintiff by 5 pm on 5 August 2015:
(a) Mazda SUV registered number XXXXX X;
(b) Suzuki Van registered number XXXXX X;
(c) Toyota Hilux registered number XXXXX X.
(3) If the defendant has the combination in the defendant's possession or is able to reasonably obtain the combination then the defendant must provide to the plaintiff the combination to the lock safe at the property by 5 pm on 5 August 2015.
(4) Judgment for the plaintiff in the sum of $198,893.50.
(5) The notice of motion is stood over before the Registrar for further directions at 9 am on 12 August 2015.
(6) The defendant must pay the plaintiff's costs of the motion on the ordinary basis.Catchwords: COSTS – indemnity costs – orders sought in motion ultimately consented to – whether the plaintiff is entitled to indemnity costs of the motion – costs awarded on the ordinary basis Category: Procedural and other rulings Parties: Guillermo Rafael Munoz (Plaintiff)
Galnyamba Friday Creek Pty Limited (Defendant)Representation: Counsel:
Solicitors:
C H Cassimatis (Plaintiff)
M Newton (Defendant)
Jason McClung Solicitor (Plaintiff)
Bilbie Dan (Defendant)
File Number(s): 2014/336689
ex tempore Judgment
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This is a stage in the culmination of a longstanding dispute between Mr Munoz, the plaintiff, and Mr and Mrs Landolt, who are associated with the company that is the defendant.
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To state things very succinctly, there was a contract for sale of land near Coffs Harbour that was not completed, and which was the subject of various deeds of variation. Eventually, the matter was seemingly resolved on the basis that, so long as there was completion on a particular date earlier this year, things could proceed; if not, the plaintiff would be entitled to vacant possession of his unsold land.
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By way of a judgment of 3 July 2015, Adamson J held the defendants to that agreement, terminated the contract, and granted immediate possession to the plaintiff.
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Unfortunately, the dispute has continued since that time. Correspondence by letter and email from the solicitor for the plaintiff shows that the plaintiff was seeking to have returned various items that he asserted were urgently necessary for the conduct of the business at the property. The solicitor for the plaintiff explicitly referred to that urgency; gave a reason for it; and foreshadowed precisely what has since occurred; namely, the hearing of an urgent matter before me as Duty Judge.
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The response of Mr Landolt was an email to the effect that the items would be provided two days from today, subject to further negotiations about other matters.
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Today, there has been agreement on the part of the defendant to provide the items, and in that sense the motion has been successful. A query I had about the technical bases for some of the consent orders has been assuaged. The only remaining dispute is about the costs of the motion.
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Counsel for the plaintiff submitted that his client is entitled to indemnity costs of the motion, because his client was put to the time, trouble and expense of bringing further proceedings in the Supreme Court with regard to a matter that has been fully resolved in his favour.
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Counsel for the defendant submitted that the matter would have been before the Court in any event in two or three days' time; that the matter has been the subject of consent orders; and that it could not have been the case that the matter was so urgent that it had to be brought on right now. It was also said that the basis of the orders made is not the basis upon which the orders were sought.
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Turning to my determination about costs, the solicitor for the plaintiff, as I have said, made perfectly clear what has now come to pass. I do not think that the plaintiff can be criticised for bringing this motion separately from the directions hearing that is to occur shortly. Nor do I think that the basis of the consent orders is determinative of this question. Certainly, to my mind, the plaintiff is entitled to the costs of the motion.
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My mind has wavered as to whether they should be indemnity costs, in light of the history of the correspondence that was placed in evidence. But that is an unusual remedy that should not be imposed lightly, and one should be confident that it is appropriate before doing so. Ultimately, as a matter of discretion, I propose to order that the plaintiff must have the costs of the motion, but on the ordinary basis.
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I make the following orders:
The defendant must transfer the items listed in Annexure A of the short minutes to the plaintiff by 5 pm on 5 August 2015;
The defendant must transfer the possession and registration of the following items to the plaintiff by 5 pm on 5 August 2015:
Mazda SUV registered number XXXXX X;
Suzuki Van registered number XXXXX X;
Toyota Hilux registered number XXXXX X.
If the defendant has the combination in the defendant's possession or is able to reasonably obtain the combination then the defendant must provide to the plaintiff the combination to the lock safe at the property by 5 pm on 5 August 2015.
Judgment for the plaintiff in the sum of $198,893.50.
The notice of motion is stood over before the Registrar for further directions at 9 am on 12 August 2015.
The defendant must pay the plaintiff's costs of the motion on the ordinary basis.
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Decision last updated: 14 August 2015
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