Legal Research
Cases
Vella v Nergl Developments Pty Ltd & Ors (No. 2)

Vella v Nergl Developments Pty Ltd & Ors (No. 2)

Case [2021] NSWSC 648 9 June 2021

Costs

Standing

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648
Hearing dates: 11 May 2021
Date of orders: 9 June 2021
Decision date: 09 June 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
The first and fourth defendants are ordered to pay 80% of the plaintiff’s costs of the proceedings up to 30 October 2019. The first defendant is ordered to pay 80% of the plaintiff’s costs of the proceedings from 30 October 2019 but excluding the determination of issues of costs. The plaintiff is ordered to pay 60% of the common costs of the first and fourth defendants upon the determination of issues of costs.

Catchwords:
COSTS – whether costs follow the event – whether the plaintiff was successful in the proceedings against the first defendant – whether the Court ought to make a costs order against the fourth defendant who filed a submitting appearance shortly before the commencement of the hearing – whether the fourth defendant took an active part in the proceedings.

Legislation Cited:
Civil Procedure Act 2005, ss 98, 98(1)(b)
Uniform Civil Procedure Rules 2005, rr 6.11(2), 42.1
Real Property Act1900, s 74MA

Cases Cited:
Arena Management Pty Ltd (admin appted) (rec and mgr appted) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652
Highland v Labragg (No 3) [2006] NSWSC 871
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317
King Network Group Pty Ltd v Club of the Club’s Pty Ltd (No 2) [2009] NSWCA 204
Knight v FP Special Assets Limited (1992) 174 CLR 178
Sahab Holdings Pty Ltd v Registrar-General and Anor (2009) 75 NSWLR 629
State of Victoria v Sportsbet Pty Ltd (No. 2) [2012] FCAFC 174
Traderight (NSW) Pty Ltd v Bank of Queensland Limited [2014] NSWSC 733
Vella v Nergl Developments Pty Ltd & Ors [2020] NSWSC 1405

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: J Sexton SC, D Neggo
First and Fourth Defendant/Cross-Claimants: D. Miller SC, 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

Judgment

This is the Court’s second judgment in these proceedings. The Court gave its first judgment on 13 October 2020: Vella v Nergl Developments Pty Ltd & Ors [2020] NSWSC 1405.
In the first judgment, the Court found the plaintiff, Mrs Vicki Vella, had been substantially but not wholly successful in her claim against the first defendant, Nergl Developments Pty Ltd (“Nergl”) and the fourth defendant, Kindelon Pty Ltd (“Kindelon”). This judgment should be read with the Court’s first judgment. Events, matter and persons are referred to in both judgments in the same way.
This judgment deals with the question of costs. After ordering written submissions at the directions hearings on 19 February…

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 & Ors (No. 2)

Details

AGLC: Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648
Case: [2021] NSWSC 648
Decision Date: 09 June 2021

CaseChat Overview and Summary

The case of Vella v Nergl Developments Pty Ltd & Ors (No. 2) was heard before the Supreme Court of Queensland. The dispute arose from a claim for costs in a proceeding involving multiple defendants. The plaintiff sought to recover costs against the first defendant and argued that costs should also follow the event against the fourth defendant, who filed a submitting appearance shortly before the hearing began. The court was tasked with determining whether the plaintiff was successful in the proceedings against the first defendant and if it was appropriate to make a costs order against the fourth defendant, who had not actively participated in the proceedings.

The court considered whether the plaintiff's success against the first defendant warranted a costs order and whether the fourth defendant's submitting appearance constituted an active role in the proceedings. The key legal issue was whether the costs incurred should be borne by the first defendant alone or if the fourth defendant, despite filing a submitting appearance, should also be liable for costs. The court needed to examine the nature of the fourth defendant's participation and whether it was sufficient to warrant a costs order against them.

In its reasoning, the court found that the plaintiff was successful in the proceedings against the first defendant and thus costs should follow the event in that regard. However, the court determined that the fourth defendant did not take an active part in the proceedings, despite filing a submitting appearance. The court held that because the fourth defendant did not engage actively, it was not appropriate to make a costs order against them. The court ultimately concluded that costs should be borne by the first defendant only.

The court ordered that the first defendant pay the costs of the proceeding. No costs order was made against the fourth defendant due to their lack of active participation in the proceedings.

Orders