Bateman Long and Maloney Pty Ltd v Long Beach Land Company Pty Ltd [2011] NSWSC 1495

Supreme Court New South Wales

Medium Neutral Citation: Bateman Long and Maloney Pty Ltd v Long Beach Land Company Pty Ltd [2011] NSWSC 1495 Hearing dates: 2 December 2011 Decision date: 02 December 2011 Jurisdiction: Equity Division Before: Bryson AJ Decision: (1) Pursuant to s.98 of the Civil Procedure Act 2055 (NSW), the Court orders the First Respondent (Bill Gertos) to pay the balance owing to the Third Defendant (Paul May) plus interest for his costs in these proceedings. (2) The Court notes that as of 1 August 2011 the balance owing to the Third Defendant was $53,572.23 pursuant to judgment he obtained against the Second Respondent/Plaintiff (Bateman Long & Maloney Pty Ltd) in proceedings number 2011/00247163. (3) The First Respondent and Second Respondent/Plaintiff pay the Third Defendant's costs of the motion. Catchwords: COSTS - order against non-party - after negotiating for Option to purchase land himself the respondent formed a company which entered into the Option Deed - he soon became sole director, secretary and shareholder, capital $100 - the company brought litigation claiming it relied on misrepresentations to the respondent made before it was formed - respondent was not a plaintiff - after protracted interlocutory preparation the litigation was settled on second hearing day on terms which amounted to capitulation - company did not pay assessed costs apart from deposit as security for costs - respondent provided company with all funds it needed and was its controlling mind throughout - order for payment of costs by respondent although not a party to the litigation. Legislation Cited: Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Fair Trading Act 1987 (NSW). Interpretation Act 1987 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rule 2005 (NSW) Cases Cited: FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Knight v FP Special Assets Limited (1992) 174 CLR 178 Category: Costs Parties: Mr Paul May (Applicant /Third Defendant) Mr Bill Gertos (First Respondent) Bateman Long Maloney Pty Ltd (Second Respondent/Plaintiff) Representation: Counsel: Ms L Chan (Applicant/Third Defendant) Mr R O'Gorman-Hughes (First Respondent) Solicitors: Kennedys (Applicant/Third Defendant) Jordan Jundja (First Respondent) File Number(s): 2009/00288066 Publication restriction: none