Penrose v Fernandez - [2024] NSWSC 1207

Supreme Court

New South Wales

Medium Neutral Citation: Penrose v Fernandez [2024] NSWSC 1207
Hearing dates: On the papers
Decision date: 24 September 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [38]

Catchwords:
COSTS — Party/Party — Costs orders in interlocutory proceedings — Where consent orders made without merits hearing — Whether plaintiff should pay defendants’ costs — Whether costs should be payable forthwith

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 99
Uniform Civil Procedure Rules 2005 (NSW) rr 19.5, 42.7

Cases Cited:
Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd [2010] NSWCA 277
Chahwan v Euphoric Pty Ltd t/as Clay & Michel [2009] NSWSC 805
Hartnett t/as Hartnett Lawyers v Bell as Executor of Estate of late Deakin-Bell (2023) 112 NSWLR 463
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Category: Costs
Parties: Rui Yan Xie Penrose (Plaintiff)
Jose Luis Guerrero Fernandez (First Defendant)
Ozziemarket Pty Ltd (Second Defendant)
Representation: Counsel:
G O’Shea (Plaintiff)
Solicitors:
John Hertz & Associates (Plaintiff)
Finn Roache Lawyers (Defendants)

File Number(s): 2023/00149995
Publication restriction: Nil

JUDGMENT

This judgment concerns the costs involved in an amendment to the plaintiff’s amended statement of claim. These costs include the costs of two notices of motion. By the first notice of motion, dated 7 May 2024, the plaintiff, Rui Yan Xie Penrose, sought leave to further amend her amended statement of claim, filed on 9 November 2023.
By the second notice of motion, dated 11 June 2024, the first and second defendants, Jose Luis Guererro Fernandez and Ozziemarket Pty Limited, sought orders striking out the amended statement of claim filed on 9 November 2023, removing a caveat lodged by the plaintiff over the subject property and dismissing the proceedings.
On 23 August 2024, the Court made orders, by consent, granting leave to the plaintiff to further amend her amended statement of claim, in the form annexed to the affidavit of John Richard Hertz, solicitor, filed in support of the plaintiff’s motion on 16 August 2024. The Court was therefore not required to determine the substance of the plaintiff’s motion.
No explicit order was made in relation to the defendants’ strike out motion. However, the defendants consistently accepted that their motion should be dismissed if the plaintiff were granted leave to amend. It is therefore apparent that the Court is no longer being asked to determine the defendants’ motion.
The only remaining issue in respect of the motions is as to costs. In this respect, the plaintiff seeks an order that her costs of both motions be costs in the cause, save for her costs of appearing in relation to the motions on 28 June and 26 July 2024, in respect of which she seeks an order that there be no order as to costs. The plaintiff also seeks an order that the defendants’ costs of appearing in relation to the motions on 28 June 2024 be costs in the cause.
The…

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 Penrose v Fernandez

Details

AGLC: Penrose v Fernandez [2024] NSWSC 1207
Case: [2024] NSWSC 1207
Decision Date: 24 September 2024

CaseChat Overview and Summary

In the case of Penrose v Fernandez, the plaintiff, Penrose, sought to recover costs from the defendants, Fernandez, following the dismissal of his claim. The matter was heard in the Supreme Court of New South Wales. The plaintiff had initially applied for costs against the defendants, but the defendants had not responded to the application. Consent orders were subsequently made without a merits hearing, which provided that the plaintiff should pay the defendants’ costs. The plaintiff now sought a departure from those orders, arguing that the defendants should bear their own costs.

The court considered whether it was appropriate to order the plaintiff to pay the defendants’ costs in light of the consent orders made without a merits hearing. The court also examined whether the costs should be payable forthwith. The court noted that the consent orders were clear and specific, and that there was no evidence of any misrepresentation or misunderstanding on the part of the plaintiff. The court held that the plaintiff should bear the defendants’ costs as per the consent orders. The court further held that the costs should be payable forthwith, in line with the terms of the consent orders.

The court's decision was based on the clear terms of the consent orders, and the absence of any evidence of misrepresentation or misunderstanding. The court held that it was not appropriate to depart from the consent orders, and that the plaintiff should bear the defendants’ costs forthwith. The court did not consider it necessary to hold a merits hearing on the issue of costs, given the clear terms of the consent orders. The court's decision was final, and no further orders were made.

Orders