Odelli v Gabrielle (No 2) - [2024] NSWSC 768

Supreme Court

New South Wales

Medium Neutral Citation: Odelli v Gabrielle (No 2) [2024] NSWSC 768
Hearing dates: 19 June 2024
Date of orders: 21 June 2024
Decision date: 21 June 2024
Jurisdiction: Equity - Real Property List
Before: Parker J
Decision:
[15]

Catchwords:
COSTS — party/party — costs follow the event — multiple claims — plaintiff claims orders appointing trustee for sale of co-owned property — defendant cross-claims for declaration that plaintiff held her portion of property on trust for him — cross-claim rejected – property sold by mortgagee and appointment of trustee rendered unnecessary — costs of cross-claim to be paid by unsuccessful defendant – costs of plaintiff’s claim to be borne by the parties — whether common costs to follow the claim or the cross-claim

Legislation Cited:
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Kardos v Sarbutt(No. 2) [2006] NSWCA 206
Medway Oil & Storage Co Ltd v Continental Contractors Ltd [1929] AC 88
Odelli v Gabrielle [2024] NSWSC 468
Smith v Madden (1946) 73 CLR 129
Southern Oil Refining Pty Ltd v Hydrodec Australia Pty Ltd(No 2) [2021] NSWSC 336
Spathis v Nanos (No 2) [2008] NSWSC 470

Texts Cited:
Nil

Category: Procedural rulings
Parties: Edda Odelli (Plaintiff/Cross-Defendant)
Chakib Carlo Gabrielle (Defendant/Cross-Claimant)
Representation:
Counsel:
N Kulkarni (Plaintiff/Cross-Defendant)
S Baron Levi (Defendant/Cross-Claimant)
Solicitors:
Lane & O’Rourke (Plaintiff/Cross-Defendant)
Avon Lawyers (Defendant/Cross-Claimant)

File Number(s): 2023/43730
Publication restriction: Nil

JUDGMENT

Following a trial in February this year, I delivered judgment in this matter in April: Odelli v Gabrielle [2024] NSWSC 468 (“J1”). The present judgment concerns the costs of the proceedings.
The background to the proceedings is summarised at J1 [1]-[6]. The procedural history and the claims that were to be determined are identified at J1 [7]-[20]. For the purposes of the costs argument, the relevant background may be summarised as follows.
The plaintiff, Mrs Odelli, and the defendant, Mr Gabrielle (“Carlo”), were the registered proprietors, as tenants in common in equal shares, of a residential property at Belmore in south-western Sydney. The proceedings began when a summons was filed on behalf of Mrs Odelli seeking orders for the appointment of a trustee for sale of the property pursuant to s 66G of the Conveyancing Act 1919. Carlo later cross-claimed for a declaration that Mrs Odelli held her share in the property as trustee for him.
In my April judgment, I found that Carlo’s cross-claim failed, and I ordered that it be dismissed. The property was subject to a mortgage from the National Australia Bank which, by the time the trial took place, was in default. At that stage, however, the Bank had not been proposing to take any action to sell the property (J1 [20]). It had therefore been common ground that, as a result of my decision to dismiss the cross-claim, Mrs Odelli was entitled to orders under s 66G (J1 [122]).
But I did not proceed in my April judgment to make orders appointing a trustee immediately. This was…

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 Odelli v Gabrielle (No 2)

Details

AGLC: Odelli v Gabrielle (No 2) [2024] NSWSC 768
Case: [2024] NSWSC 768
Decision Date: 21 June 2024

CaseChat Overview and Summary

The case of Odelli v Gabrielle (No 2) involved a dispute over the ownership and sale of a property co-owned by the plaintiff and the defendant. The plaintiff sought an order appointing a trustee for the sale of the property, while the defendant filed a cross-claim requesting a declaration that the plaintiff held her portion of the property on trust for him. The case was heard in a relevant court, which provided a decision on the legal issues presented by both parties.

The central legal issues the court had to address were whether the costs associated with the defendant's cross-claim should be borne by the unsuccessful party and whether the costs of the plaintiff's claim should be shared between the parties. Additionally, the court had to determine whether the common costs should follow the event of the claim or the cross-claim.

In its reasoning, the court held that the cross-claim was rejected as the property was sold by the mortgagee, rendering the appointment of a trustee unnecessary. Consequently, the defendant was ordered to pay the costs of the cross-claim. Regarding the costs of the plaintiff's claim, the court determined that they should be borne by the parties. The court also concluded that the common costs should follow the event of the claim rather than the cross-claim. This decision was based on the outcome of the litigation and the respective successes and failures of the parties' claims and cross-claims.

Ultimately, the court made orders that the defendant pay the costs of the cross-claim, while the costs of the plaintiff's claim were to be borne by the parties. Furthermore, the common costs were to follow the event of the plaintiff's claim. This decision provided clarity on the allocation of costs in a case involving multiple claims and cross-claims, ensuring that the unsuccessful party bore the costs of their own proceedings while also addressing the broader issue of shared costs between the parties.

Orders