LEEMING JA: These reasons relate to the costs of an application for a stay of an order made on 7 December 2017 authorising the plaintiff in pending proceedings in the Equity Division, Ms Cheryl Drinkwater, to be paid $1 million from a controlled monies account established by agreement of the parties by 14 December 2017. The application was brought with haste, so much so that neither a summons seeking leave to appeal, nor a draft notice of appeal, nor a notice of motion has been filed. The application appears first to have been notified to the respondent on the afternoon of 13 December 2017 (the afternoon of the day before the funds were to be transferred). The matter was listed before me promptly after it was notified, and the parties exchanged submissions and Ms Drinkwater swore an affidavit identifying her need for the funds and how they would be used.
During the course of the morning of 14 December 2017, and following receipt of that affidavit, Mr Nadinic abandoned his application for a stay, and indeed abandoned his (unformalised) application for leave to appeal.
The only issue that remains is as to the costs which have been incurred. Ms Drinkwater submits that costs should follow the event. Mr Nadinic says that there should be an order as to costs. The parties were content to have this issue determined on the papers. Each has supplied two page submissions in support of the orders for which each contends.
Mr Nadinic seeks to apply the principle in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622, to the effect that this is a case where both parties have acted reasonably prior to proceedings being settled, that the costs should be made. He emphasises the fact that, following his resignation as director, he had no access to the books and records of Brooks Parade Pty Ltd (the company involved in selling property development) and it was only after 9:40am…
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.
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Details
AGLC
Nadinic v Drinkwater (No 2) [2017] NSWCA 334
Case
[2017] NSWCA 334
Decision Date
CaseChat Overview and Summary
In *Nadinic v Drinkwater (No 2)*, the New South Wales Court of Appeal considered an application for a stay of execution. The applicant, Mr Nadinic, sought to stay the execution of a judgment obtained by the respondent, Ms Drinkwater.
The primary legal issue before the Court was whether there were any reasons why costs should not follow the event, given that Mr Nadinic had abandoned his application for a stay of execution.
Leeming JA applied the general rule that costs follow the event, meaning the unsuccessful party typically pays the successful party's costs. In this instance, Mr Nadinic's abandonment of the application meant he had not succeeded in his pursuit of a stay. Consequently, there was no apparent reason to depart from the usual rule.
Accordingly, the Court ordered that Mr Nadinic pay Ms Drinkwater’s costs of the application for a stay of execution.
Orders
Orders of the court
Mr Nadinic to pay Ms Drinkwater’s costs of the application for a stay of execution.