Big Kahuna Holdings Pty Ltd v Kitas (No 2) [2012] NSWSC 858

Supreme Court New South Wales

Medium Neutral Citation: Big Kahuna Holdings Pty Ltd v Kitas (No 2) [2012] NSWSC 858 Hearing dates: 13 July 2012 Decision date: 31 July 2012 Before: McCallum J Decision: Defendant's application to have proceedings re-opened refused; defendant's application for relief against payment of interest during period of plaintiff's delay in proceedings refused; plaintiff ordered to pay 70% of the defendant's costs up to and including the first day of the hearing and 40% of the defendant's costs from that date Catchwords: COURTS - Practice and procedure - judgments and orders - power to re-open exercise of discretion before orders entered - circumstances in which power should be exercised by puisne judge

COSTS - follow the event - where loan agreement varied under Contracts Review Act - whether costs order should reflect proportion in which loan as varied funded by parties - decision in Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 applied Legislation Cited: Contracts Review Act 1980 District Court Act 1973 Property (Relationships) Act 1984 Cases Cited: Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 Baker v Towle [2008] NSWCA 73 Bennett v Jones [1977] NSWLR 355 Big Kahuna Holdings Pty Ltd v Kitas [2012] NSWSC 615 Cook v Permanent Mortgages Pty Ltd [2007] NSWCA 219 De L v Director General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 Falkner v Bourke (1990) 19 NSWLR 574 Geoffrey W Hill & Associates v Squash Centre (Allawah North) Pty Ltd (unreported) NSWCA 2 October 1990 Harrison's Share under a Settlement [1955] Ch 260 Metro Meat Ltd v Werlick (1993) Aust Torts Reports 81-242 New South Wales Bar Association v Smith [1991] NSWCA 215 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Perri v Flavell [No 2] NSWCA (unreported) 20 September 1995 Pittalis v Sherefettin [1986] 1 QB 868 Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Category: Costs Parties: Big Kahuna Holdings Pty Ltd (plaintiff) Joanna Kitas (defendant) Representation: Counsel: M R Gracie (plaintiff) B M Zipser (defendant) Solicitors: Whitfield Solicitors (plaintiff) Peter Mitchell Law Practice (defendant) File Number(s): 2007/264557 Publication restriction: None