Vella v Nergl Developments Pty Ltd (No. 5) - [2022] NSWSC 476

Supreme Court

New South Wales

Medium Neutral Citation: Vella v Nergl Developments Pty Ltd & Ors (No. 5) [2022] NSWSC 476
Hearing dates: 12 April 2022
Date of orders: 12 April 2022
Decision date: 19 April 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders for the removal of caveats made, with limited continuing restraints upon the plaintiff. Orders made for the execution of conveyancing documents on behalf of the first and fourth defendants by the Registrar in Equity. Orders made for the plaintiff to be compensated for the costs of preparing certain conveyancing instruments. Costs orders are made in favour of the plaintiff and for a specified gross sum costs order instead of assessed costs.

Catchwords:
CONSEQUENTIAL ORDERS - application to enforce existing orders of the court – orders made pursuant to earlier judgments for the removal of caveats and the execution of conveyancing documents – caveats not removed – conveyancing documents not executed – what enforcement orders should be made in the circumstances.
COSTS – specified gross sum order instead of assessed costs – Civil Procedure Act 2005 s 98(4)(c) – commercial dispute concerning the development of rural land into allotments – long-running and contentious proceedings resulted in five judgments of the trial judge and one appellate decision – proceedings resulted in two costs assessments, which are still ongoing – non-compliance with the Court’s orders – now desirable that proceedings be ended and the opportunity for further contention reduced – whether a specified gross sum order should be made instead of assessed costs.

Legislation Cited:
Civil Procedure Act 2005, s 56, s 57, s 60, s 94, s 98(4)(c)

Cases Cited:
Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121
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
Vella v Nergl Developments Pty Ltd & Ors (No. 4) [2021] NSWSC 1652

Category: Consequential orders
Parties: Plaintiff: Vicki Vella
First Defendant: Nergl Developments Pty Limited ACN 008 645 734
Second Defendant: Peter Vella
Fourth Defendant: Kindelon Pty Ltd
Representation:
Counsel:
Plaintiff: J. Sexton SC; D. Neggo
Solicitors:
Plaintiff: C. Frawley, M&K Lawyers Group Pty Ltd
First Defendant: Mr N. Satara (Director representing)

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

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 judgment on 1 July 2021 considering an appeal from the first and…

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. 5)

Details

AGLC: Vella v Nergl Developments Pty Ltd (No. 5) [2022] NSWSC 476
Case: [2022] NSWSC 476
Decision Date: 19 April 2022

CaseChat Overview and Summary

Vella brought proceedings against Nergl Developments Pty Ltd in the Supreme Court of Queensland. The dispute related to the development of rural land into allotments. Despite previous court orders for the removal of caveats and the execution of conveyancing documents, these had not been complied with. Vella applied to enforce the existing orders and to determine what further enforcement measures should be taken.

The court had to decide whether it should grant specified gross sum orders instead of assessed costs due to the lengthy and contentious nature of the proceedings, which had resulted in five judgments from the trial judge and one appellate decision. Additionally, two costs assessments had been made, and both were still ongoing. The court also needed to consider whether non-compliance with the orders and the desirability of concluding the proceedings justified the imposition of a specified gross sum order to reduce further contention.

The court held that the circumstances of the case warranted the imposition of a specified gross sum order rather than continuing with assessed costs. The long-standing and complex nature of the dispute, the non-compliance with previous orders, and the need to bring the proceedings to a close were all factors that supported this decision. The court also noted the commercial nature of the dispute and the benefit of reducing the potential for further contention over costs.

The final orders included a specified gross sum order in lieu of assessed costs, with specific amounts allocated for each party's costs. This decision aimed to conclude the litigation efficiently and reduce the potential for ongoing disputes over costs.

Orders