BRENDAN KING PTY LTD v TOSESKA - COSTS [2006] NSWSC 487

New South Wales Supreme Court

CITATION : BRENDAN KING PTY LTD v TOSESKA - COSTS [2006] NSWSC 487

HEARING DATE(S) : 8 June 2006

JUDGMENT DATE : 29 August 2006

JUDGMENT OF : Hulme J at 1

DECISION : See paragraph 14

PARTIES : Brendan King Pty Ltd Liljana Toseska

FILE NUMBER(S) : SC 10480/04

COUNSEL : Plaintiff: MW Young Defendant: MB Duncan

Bransgroves 135 King Street SYDNEY

SOLICITORS : Tony Vella 38-40 George Street PARRAMATTA 15a Belmore Street BURWOOD

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J Tuesday 29 August 2006 10480/04

BRENDAN KING PTY LTD v Liljana TOSESKA JUDGMENT 1 HULME J: In this matter, I delivered reasons on 26 May last and on 8 June made substantive orders to give effect to those reasons. Sacrificing some accuracy for brevity, at the instigation of the Defendant and on grounds of unconscionability, I set aside a mortgage she had granted in favour of the Plaintiff. As is common in that situation, there were terms imposed or orders made resulting in some payments being received by the Plaintiff. 2 These reasons are concerned with what order or orders for costs should be made. 3 The Defendant was substantially successful in the litigation and, prima facie, should be entitled to the costs associated with that success. 4 However the Defendant pleaded and also gave evidence in support of a case of fraud and on this she was unsuccessful. The time expended on that claim was not insignificant and prima facie, her entitlement to costs should be decreased by, and she should bear the costs of, that claim. 5 The litigation did not follow an orderly path prior to the hearing and the Plaintiff submitted that the Defendant should be ordered to pay the Plaintiffs' costs of the proceedings prior to the 4th or 5th April 2005, the time at which the Defendant first filed a Defence and Cross-Claim. A consideration of this submission requires some attention to the earlier events in the proceedings. I do not think it necessary to refer to all of these but the following chronology provides some indication of the more significant events. 23/2/04 Statement of Claim filed 11/8/04 Judgment for Possession entered 23/8/04 Requisitions from Court registry 7/9/04 Writs of Possession issued 19/11/04 Order staying Writs of Possession After at least one extension this stay seems to have lapsed on about 2/12/05 24/12/05 Order extending 2 caveats lodged by D After a number of extensions, these seem to have lapsed on 12/1/05 24/12/04 The D files an affidavit in which she alleges having been told the interest rate was 7.2 not 72% per annum 4/1/05 Injunction restraining P from dealing with the conveyance of 2 of D's properties Injunction dissolved 12/1/05 Order that proceeds of sale of 2 properties be held by P's solicitor as trust funds pending further order Costs reserved. Directions that D file & serve within 28 days any application re moneys held 10/2/05 N/M by P seeking that D account for funds received from P or from sale of 2 properties Declaration that D's caveats have lapsed 22/2/05 Injunction against D and her father restraining the lodging of further caveats Order that D pay Ps' costs of motion. 14/3/05 P files N/M seeking release of moneys the subject of 12/1/05 orders and that 8/3/05 (sic) directions be set aside P files N/M seeking 16/3/05 - to set aside default judgment - leave to defend - permanent stay or writ P given leave to amend 18/3/05 D given leave to file Defence & Cross-Claim The orders contain no reference to costs Directions made 23/3/05 Amended S/C filed 4/4/05 Defence & Cross-Claim filed These pleadings squarely raise, albeit for the first time, the issue of unconscionability on which the Plaintiff succeeded Default Judgment set aside; Writ stayed; 5/4/05 D ordered to join R-G D ordered to file any affidavits by 17 May; Costs reserved 19/4/05 Defence to Cross-Claim filed 31/5/05 D files N/M seeking dismissal of proceedings on Defence and Cross-Claim for failure to comply with directions to file by 17/5 An affidavit in support shows P wrote a warning letter on 25/5, D said would file by 30/5 and did not. 8/6/05 N/M of 31/5 dismissed The orders contain no reference to costs D ordered to join R/G etc by 17/6/05 21/6/05 D files N/M seeking dismissal of proceedings on Defence and Cross-Claim for failure to comply with directions 22/6/05 Amended Defence and Cross-Claim filed 27/6/05 N/M (Presumably of 21/6) dismissed D ordered to pay costs of N/M 8/7/05 Referred to call-up list