Vella v Nergl Developments Pty Ltd (No. 4) - [2021] NSWSC 1652

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Vella v Nergl Developments Pty Ltd & Ors (No. 4) [2021] NSWSC 1652
Hearing dates: 15 December 2021
Date of orders: 15 December 2021
Decision date: 17 December 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
First defendant is ordered to pay 40% of the plaintiff’s costs incurred since the first judgment in these proceedings.

Catchwords:
COSTS – where the plaintiff was substantially successful in the first proceedings – the parties have since been engaged in negotiations and argument about the final form of a Conveyancing Act1919, s 88B instrument and a Deed of Release – mixed result in the negotiations – the plaintiff was partially successful on a procedural Motion since the first judgment – what orders are appropriate for the period since the first judgment.
LAND LAW – Easements – Registration of Easements – Section 88B instrument – final form of section 88B instrument agreed upon by the parties with the assistance of directions from the Court on a relief hearing.

Legislation Cited:
Conveyancing Act 1919, s 88B

Cases Cited:
Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171
Nergl Developments Pty Ltd v Vella [2021] NSWCA 131
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Vella v Nergl Developments Pty Ltd & Ors [2020] NSWSC 1405
Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648
Vella v Nergl Developments Pty Ltd & Ors (No. 3) [2021] NSWSC 1352

Category: Costs
Parties: Plaintiff: Vicki Vella
First Defendant/Cross-Claimant: Nergl Developments Pty Limited ACN 008 645 734
Second Defendant: Peter Vella
Fourth Defendant/Cross-Claimant: Kindelon Pty Ltd
Representation:
Counsel:
Plaintiff: D. Neggo
First and Fourth Defendant/Cross-Claimants: P. R. Gaffney
Solicitors:
Plaintiff: C. Frawley, M&K Lawyers Group Pty Ltd
First and Fourth Defendant/Cross-Claimants: L. Walker, Minter Ellison

File Number(s): 2018/312416
Publication restriction: No

EX TEMPORE Judgment

This is the Court's fifth judgment in these proceedings. The Court's principal judgment was given on 13 October 2020: Vella v Nergl Developments Pty Ltd & Ors [2020] NSWSC 1405. The Court's second judgment was given on 9 June 2021: Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648. The Court of Appeal gave a judgment on 1 July 2021: Nergl Developments Pty Ltd v Vella [2021] NSWCA 131. I have since given my third judgment on 29 October 2021. A history of these various judgments is set out in my third judgment: Vella v Nergl Developments Pty Ltd & Ors (No. 3) [2021] NSWSC 1352, at [1] to [3].
This judgment should be read with all the Court's previous judgments. Events, matters, and persons are referred to in all my judgments in the same way.
The only issues which now remain, and which were the subject of argument today, are the final form of the Conveyancing Act 1919, s 88B instrument, and costs.
The first of these issues has now been resolved. The submissions put by the parties…

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 Vella v Nergl Developments Pty Ltd (No. 4)

Details

AGLC: Vella v Nergl Developments Pty Ltd (No. 4) [2021] NSWSC 1652
Case: [2021] NSWSC 1652
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of Vella v Nergl Developments Pty Ltd (No. 4) involved a dispute concerning the final form of a Section 88B instrument under the Conveyancing Act 1919 and a Deed of Release. The plaintiff, Vella, was substantially successful in the first proceedings but faced difficulties in negotiations with the defendant, Nergl Developments, regarding the final form of these instruments. The case was heard in the Supreme Court of New South Wales. The legal issues before the court included determining the appropriate orders for costs in light of the mixed results of the negotiations and the procedural success of the plaintiff in subsequent motions since the first judgment.

The court considered the principles of costs in litigation, particularly where the plaintiff has been substantially successful in the first instance but faces challenges in finalising agreements with the defendant. The court noted the plaintiff's partial success in a procedural motion since the first judgment and the mixed outcomes of the negotiations regarding the Section 88B instrument and the Deed of Release. The court found that the parties had reached an agreement on the final form of the Section 88B instrument with the assistance of court directions on a relief hearing, but the negotiations on the Deed of Release had not been entirely successful. The court balanced the plaintiff's success in achieving the agreed form of the Section 88B instrument against the mixed results of the negotiations and the procedural success in the subsequent motions.

Ultimately, the court made orders for costs that reflected the partial success of the plaintiff and the mixed outcomes of the negotiations. The parties were directed to finalise the Deed of Release, and orders were made concerning the costs associated with the period since the first judgment. The court's decision aimed to ensure that the costs orders were fair and reflective of the overall success and efforts of both parties in resolving the dispute.

Orders