BMW Australia Finance Ltd v Trigas (No. 2) [2022] NSWDC 342

District Court New South Wales

Medium Neutral Citation: BMW Australia Finance Ltd v Trigas (No. 2) [2022] NSWDC 342 Hearing dates: On the papers Date of orders: 16 August 2022 Decision date: 16 August 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Order the defendant to pay the plaintiff's costs of the Notice of Motion filed by the defendant on 11 March 2022. Catchwords: COSTS – order sought by plaintiff for costs of a Notice of Motion not pursued by the defendant Cases Cited: BMW Australia Finance Ltd v Trigas [2022] NSWDC 279 Category: Costs Parties: BMW Australia Finance Ltd (Plaintiff) Arthur Trigas (Defendant) Representation: Counsel: M Gunning (Plaintiff) R Perla (Defendant)

Solicitors: Mills Oakley (Plaintiff) Weinberger Lawyers (Defendant) File Number(s): 2018/71917

Judgment

Background 1. In these proceedings I gave judgment on 22 July 2022 (First Judgment) in relation to three Notices of Motion: BMW Australia Finance Ltd v Trigas [2022] NSWDC 279. By an email dated 9 August 2022 sent to my Associate, the solicitor for the plaintiff drew attention to the fact that the First Judgment failed to deal with one of the applications made on behalf of the plaintiff. 2. The first motion dealt with by the judgment was filed by the defendant on 11 March 2022 (First Motion). The First Motion sought leave for the defendant to file a cross claim against Mr Shade. Ultimately that motion was not pursued. In the First Judgment that motion was dismissed and an order was made for the defendant to pay the costs of Mr Shade of the Notice of Motion. 3. Pars 6 and 7 of the First Judgment said: "6 The first Notice of Motion was filed on 11 March 2022 by Mr Trigas. That Notice of Motion sought leave to file a Cross Claim against Mr Shade. Mr Trigas no longer wished to pursue that Notice of Motion or that form of the proposed Cross Claim. The third Notice of Motion (discussed below) sought leave to bring a Cross Claim against Mr Shade, in a more extensive pleading than that associated with the first Notice of Motion. 7 At the hearing on 30 June 2022 I made an order dismissing the defendant's Notice of Motion filed on 11 March 2022. The parties argued the costs of the first Notice of Motion."