Legal Research
Cases
Wallis v Rudek

Wallis v Rudek

Case [2020] NSWSC 1618 12 November 2020

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Wallis v Rudek [2020] NSWSC 1618
Hearing dates: 12 November 2020
Decision date: 12 November 2020
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiffs to withdraw caveat; Defendant’s costs assessed as a gross sum; Funds in Court to be paid to defendant subject to no claim being made by Commonwealth

Catchwords:
COSTS – Party/party – Bases of quantification – Whether costs orders to be partly satisfied by funds held in Court

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Real Property Act 1900 (NSW)

Cases Cited:
Wallis v Rudek [2020] NSWSC 162
Wallis v Rudek (No 2) [2020] NSWSC 215
Wallis v Rudek (No 3) [2020] NSWSC 338
Wallis v Rudek [2020] NSWCA 61
Wallis v Rudek (No 2) [2020] NSWCA 175
Wallis v Rudek [2020] NSWCA 207
WLD Practice Holdings v Sara Stockham [2020] NSWSC 1354

Category: Procedural and other rulings
Parties:
Yuri Wallis (First Plaintiff)
Olga Wallis (Second Plaintiff)
Suzanne Rudek (Defendant)
Representation:
Counsel:

J R Bennett (Defendant)

Solicitors:
Y and O Wallis (In person)
Optic Lawyers (Defendant)

File Number(s): 2018/191080
Publication restriction: No

EX TEMPORE Judgment (REVISED)

The Court has before it today two notices of motion listed for a hearing of not more than three hours. The first notice of motion was filed by the plaintiffs (to whom I shall refer as “the Wallises”) on 8 September 2020 and seeks:

“1.   That pursuant to Order 2 made on 5 March 2020 in these proceedings that: -
(a)   the sum of $ 9,045.45 be paid from the Judgment Sum paid into Court to the “Department of Human Services”;
(b)   That the sum of $115,235.30 be paid from the Judgment Sum paid into Court to “P Dobrich & Co solicitors Law Practice Trust Account” forthwith.
2.   The mater matter be dealt with in Chambers.
3.   That the orders be entered forthwith.”

The second notice of motion was filed on 28 September 2020 for the defendant (to whom I shall refer as “Ms Rudek” and for whom Mr J R Bennett of Counsel appeared) and seeks:

“1.   The Plaintiffs’ motion filed 15 September 2020 be dismissed.
2.   That the Caveat XXXXX XXX lodged in respect of the property at XXX Pennant Hills, NSW 2120 being the land comprise in folio identifier X/XXXXX X by the Plaintiffs, be withdrawn.
3.   In the alternative, that the Plaintiffs are to do all things necessary to effect a withdrawal of the Caveat XXXXX XXX referred to in Order 2.
4. That to the extent it is necessary, service of this application for the purpose of the above orders is dispensed with under s 74MA(2) of the Real Property Act 1900.
5.   Declaration that all belongings and chattels remaining on the property at the date of this Order are property of the Defendant and that the Defendant is at liberty to dispose of these belongings and chattels as she sees fit.
6.   Declaration that to the extent that any belongings and chattel referred to in the above order…

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 Wallis v Rudek

Details

AGLC: Wallis v Rudek [2020] NSWSC 1618
Case: [2020] NSWSC 1618
Decision Date: 12 November 2020

CaseChat Overview and Summary

In the case of Wallis v Rudek, the respondents sought to recover costs from the appellants, who had been unsuccessful in their legal action. The dispute was heard by the Supreme Court of New South Wales, which had to determine the appropriate method for quantifying the costs awarded to the respondents. The primary issue before the court was whether the costs orders, which were to be partly satisfied by funds held in court, should be quantified on a party/party basis or in another manner.

The court considered the established legal principles regarding the quantification of costs, particularly in cases where funds held in court are used to satisfy part of the costs order. The court acknowledged the importance of ensuring that the quantification of costs was fair and equitable, taking into account the resources and efforts expended by both parties during the litigation process. The court also needed to determine whether the use of funds held in court would have any impact on the method of quantification and whether the party/party basis was the most appropriate approach.

The Supreme Court concluded that the party/party basis of quantification was the most appropriate method in this case. The court reasoned that this approach allowed for a fair assessment of the costs incurred by each party, ensuring that the successful party was adequately compensated for their legal expenses. The court also noted that the use of funds held in court did not alter the fundamental principles of cost quantification and that the party/party basis remained the most suitable method. The court further held that the orders for costs should be partly satisfied by the funds held in court, providing a practical and equitable solution to the issue at hand.

The final orders of the court provided that the respondents' costs were to be quantified on a party/party basis, with a portion of the costs to be satisfied by the funds held in court. This decision provided clarity and guidance for future cases involving similar issues, ensuring that the principles of fairness and equity are upheld in the quantification of costs.

Orders