Supreme Court
New South Wales
Medium Neutral Citation: Tan v The Owners Strata Plan 22014 (No 3) [2016] NSWSC 896 Hearing dates: On the papers Date of orders: 28 June 2016 Decision date: 28 June 2016 Jurisdiction: Equity Before: Robb J Decision: See par 34 and 35
Catchwords: COST ORDERS – third defendant sought indemnity from the first defendant owners corporation for her costs of the proceedings – first defendant was not initially capable of opposing plaintiffs’ application for leave to take proceedings in the name of the first defendant – court of its own motion joined the third defendant as a party to plaintiffs’ application – exceptional circumstances – principles of justice and fairness considered – court had already ordered the first defendant to indemnify the plaintiffs for their costs HELD court exercised discretion as to costs under Civil Procedure Act 2005 (NSW), s 98 – first defendant to pay third defendant indemnity costs properly related to the third defendant responding to the plaintiffs’ application Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Oates v Consolidated Capital Services Ltd [2009] NSWCA 183; (2009) 76 NSWLR 69
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6
Tan v The Owners Strata Plan 22014 (No 2) [2015] NSWSC 1920
Owners Strata Plan No 68372 v Allianz Australia Insurance Ltd (No 2) [2015] NSWSC 729
Wallersteiner v Moir (No 2) [1975] QB 373Texts Cited: Ritchie’s Uniform Civil Procedure NSW Category: Costs Parties: Patrick Tian Teng Tan (first plaintiff)
Ian Paterson Walters (second plaintiff)
Rose Sok Kio Tan (third plaintiff)
Owners Corporation Strata Plan No 22014 (first defendant)
Whelan Property Group Pty Ltd (second defendant)
Janette Daisy Porter (third defendant)Representation: Counsel: N Cotman SC (plaintiffs)
Solicitors: Terrett Lawyers (plaintiffs)
D Russell (solicitor) (first and second defendants)
D Hand (third defendant)
Chambers Russell Lawyers (first and second defendants)
Mills Oakley Lawyers (third defendant)
File Number(s): 2014/176516 Publication restriction: None
Judgment
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On 17 December 2015, I published reasons for judgment in these proceedings on a number of costs questions: see Tan v The Owners Strata Plan 22014 (No 2) [2015] NSWSC 1920.
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The reasons were primarily concerned with an application by the plaintiffs that the first defendant, the Owners Corporation, indemnify them in respect of their costs of the proceedings.
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The plaintiffs made their application on the basis of the principle considered by the English Court of Appeal in Wallersteiner v Moir (No 2) [1975] QB 373. I considered the relevant legal principles at [90] to [118] of the earlier reasons.
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Ordinarily, when an application is made that a corporation indemnify plaintiffs, who have commenced proceedings for the benefit of the corporation, or its members generally, in respect of their costs of the proceedings, there is a natural contradictor to the plaintiffs’ application. In most cases, the natural contradictor will be the person or group who control the corporation, or who are members of the corporation who have taken some course in opposition to…
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- Case
- [2016] NSWSC 896
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the third defendant was entitled to an indemnity for costs from the first defendant, given that the first defendant was initially incapable of opposing the plaintiff's application for leave. The court had to determine if the circumstances were exceptional enough to warrant such an indemnity, considering the principles of justice and fairness. The court was also required to assess if the third defendant's response to the plaintiff's application was properly related to the proceedings.
In resolving the matter, the court exercised its discretion under section 98 of the Civil Procedure Act 2005 (NSW) and found that the first defendant was to indemnify the third defendant for costs properly related to the third defendant responding to the plaintiffs' application. The court considered the exceptional circumstances and the principles of justice and fairness in making its decision. The court concluded that the third defendant's costs were properly related to the proceedings, and therefore, the first defendant was to indemnify the third defendant for those costs. The court's decision was based on the unique circumstances of the case and the need to ensure fairness in the allocation of costs.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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