Sergi v Sergi (No 2) - [2019] NSWSC 1221

Supreme Court

New South Wales

Medium Neutral Citation: Sergi v Sergi (No 2) [2019] NSWSC 1221
Hearing dates: On the papers
Date of orders: 16 September 2019
Decision date: 16 September 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Order that each party pay its own costs of the Notice of Motion filed on 2 April 2019.

Catchwords: COSTS – interlocutory application resolved without a determination on the merits – where plaintiffs filed a Notice of Motion seeking summary judgment against defendants – where hearing of application adjourned – where parties agreed that Notice of Motion should be dismissed following leave being granted for the filing of an Amended Defence and Amended Cross-Claim – whether either party acted unreasonably in prosecuting or defending summary judgment motion – whether specific cost order should be made for defendants’ non-compliance with Court order – Order made that each party pay its own costs
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), s 66G
Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 42.10
Cases Cited: CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; [2005] HCA 53
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
ElecNet (Aust) Pty Ltd v Commissioner of Taxation (2016) 259 CLR 73; [2016] HCA 51
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Long Leys Company Pty Limited v Silkdale Pty Limited (1991) 5 BPR 97,374
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Renton v Kelly [2018] NSWSC 1377
Sergi v Sergi [2019] NSWSC 865
Tuitupou v Davies [2019] NSWSC 160
Category: Costs
Parties: Umberto Sergi (First Plaintiff)
Cleopine Pty Ltd (Second Plaintiff)
Rosario Sergi (First Defendant)
Georgio Sergi (Second Defendant)
Posamusa Pty Ltd (Third Defendant)
Antonio Sergi (Fourth Defendant)
Maria Sergi (Fifth Defendant)
Salvatore Papasidero (Sixth Defendant)
Adalina Papasidero (Seventh Defendant)
Sergi Bros Pty Ltd (Eighth Defendant)
Sercon Developments Pty Ltd (Ninth Defendant)
Ross Sergi Pty Ltd (Tenth Defendant)
Representation:
Counsel:
Mr A M Gruzman (Plaintiffs)
Mr D Barlin (First to Third and Eighth to Tenth Defendants)
Solicitors:
Warren and Warren (Plaintiffs)
ESY Lawyers Pty Ltd (First to Third and Eighth to Tenth Defendants)

File Number(s): 2018/388798
Publication restriction: None

Judgment

This judgment addresses the question of costs of the plaintiffs’ Notice of Motion filed on 2 April 2019. By that motion, the plaintiffs sought summary judgment, including against the first to third and eighth to tenth defendants, for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) of various parcels of land in New South Wales. For ease of reference, and consistent with the Court’s judgment delivered on 11 July 2019 (Sergi v Sergi [2019] NSWSC 865 – “the Earlier Judgment”), I will refer to these defendants collectively as the “active defendants”.
The plaintiffs’ summary judgment application was listed for hearing on 17 May…

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 Sergi v Sergi (No 2)

Details

AGLC: Sergi v Sergi (No 2) [2019] NSWSC 1221
Case: [2019] NSWSC 1221
Decision Date: 16 September 2019

CaseChat Overview and Summary

The plaintiffs in this case filed a Notice of Motion seeking summary judgment against the defendants in a property dispute. The application was subsequently adjourned, and the parties ultimately agreed that the Notice of Motion should be dismissed following leave being granted for the filing of an Amended Defence and Amended Cross-Claim. The court was required to determine whether either party acted unreasonably in prosecuting or defending the summary judgment motion and whether a specific cost order should be made for the defendants' non-compliance with a Court order.

The court found that neither party acted unreasonably in prosecuting or defending the summary judgment motion. The plaintiffs had a reasonable basis for seeking summary judgment, and the defendants' decision to file an Amended Defence and Amended Cross-Claim was not unreasonable given the circumstances. The court also found that the defendants had not acted unreasonably in non-compliance with a Court order, as the order in question was not a clear and unambiguous direction to file an Amended Defence and Amended Cross-Claim within a certain timeframe. As such, the court declined to make a specific cost order for the defendants' non-compliance with the Court order.

Each party was ordered to pay its own costs, reflecting the court's view that neither party acted unreasonably in prosecuting or defending the summary judgment motion. The court's decision highlights the importance of parties acting reasonably in the prosecution and defence of interlocutory applications, even in cases where the application is ultimately resolved without a determination on the merits. It also underscores the need for clear and unambiguous directions from the court to avoid disputes over compliance with Court orders.

Orders