IMB Limited v Great Wall Resources Pty Limited [2013] NSWSC 1365

Supreme Court New South Wales

Medium Neutral Citation: IMB Limited v Great Wall Resources Pty Limited [2013] NSWSC 1365 Hearing dates: 12 September 2013 Decision date: 12 September 2013 Jurisdiction: Common Law Before: Hall J Decision: (1) Each of the respondents, Francesco Saverio Capocchiano and Italia Capocchiano, are to indemnify the defendant in respect of the plaintiff's costs associated with the stay applications brought by them on and after 6 July 2011; (2) That the order requiring the respondents to indemnify the defendant not take effect until the plaintiff's costs associated with the three stay applications have been agreed or otherwise assessed; (3) That the respondents be provided with a copy of these orders; (4) That the respondents pay the defendant's costs of this motion on the ordinary basis; (5) Leave to any party to apply on seven days notice. Catchwords: COSTS - plaintiff mortgagee obtained judgment for possession against defendant company (in liquidation) - occupiers of property filed three successive applications seeking stay of execution of writ of possession - the occupiers were not party to the principal proceedings - stay applications granted on first two occasions - on last occasion stay granted on condition that occupiers pay certain amounts to plaintiff mortgagee and to defendant company - occupiers failed to comply with conditions - plaintiff obtained possession and exercised power of sale - plaintiff deducted costs of stay applications from settlement monies - application by defendant in liquidation to be indemnified by the occupiers against the plaintiff's costs associated with the stay applications brought by the occupiers - whether section 98 of the Civil Procedure Act 2005 provides power for the making of such an order - occupiers brought stay applications as occupiers of the property which coincided with the interests of the defendant - stay orders simply delayed proceedings - stay conditions not complied with - right of plaintiff to recover costs of stay proceedings available under r 42.25 of UCPR as well as pursuant to contractual entitlement under the mortgage - appropriate in all circumstances to make indemnity order in favour of the defendant Legislation Cited: Civil Procedure Act 2005 Legal Profession Act 2004 Uniform Civil Procedure Rules Category: Interlocutory applications Parties: IMB Limited (Plaintiff) Great Wall Resources Pty Limited (Defendant/Applicant) Francesco Saverio Capocchiano (Respondent) Italia Capocchiano (Respondent) Representation: Counsel: B Koch (Defendant/Applicant) No Appearance (Respondents) Solicitors: Lander & Rogers (Defendant/Applicant) No Appearance (Respondents) File Number(s): 2011/61223