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
Texts Cited: Nil
Category: Procedural rulings Parties: Edda Odelli (Plaintiff/Cross-Defendant)
Chakib Carlo Gabrielle (Defendant/Cross-Claimant)Representation: Counsel:
Solicitors:
N Kulkarni (Plaintiff/Cross-Defendant)
S Baron Levi (Defendant/Cross-Claimant)
Lane & O’Rourke (Plaintiff/Cross-Defendant)
Avon Lawyers (Defendant/Cross-Claimant)
File Number(s): 2023/43730 Publication restriction: Nil
JUDGMENT
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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.
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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.
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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.
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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]).
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But I did not proceed in my April judgment to make orders appointing a trustee immediately. This was…
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- AGLC
- Odelli v Gabrielle (No 2) [2024] NSWSC 768
- Case
- [2024] NSWSC 768
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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