Durcan Isin v Nur Seda Ozen as Administrator of the Estate of the late Erdinc Ozen [2015] NSWSC 968

Supreme Court New South Wales

Medium Neutral Citation: Durcan Isin v Nur Seda Ozen as Administrator of the Estate of the late Erdinc Ozen [2015] NSWSC 968 Hearing dates: 14, 17 July 2015 Date of orders: 17 July 2015 Decision date: 17 July 2015 Jurisdiction: Equity Division Before: Kunc J Decision: Costs thrown away to be defendant's costs in the cause Catchwords: COSTS – Costs thrown away – Hearing vacated on first day on plaintiffs' application – Defendant discovered two days before hearing that first plaintiff had been bankrupt – First plaintiff had not informed her own legal advisers of her bankruptcy – Bankruptcy had potentially significant effect on first plaintiff's case Cases Cited: Samootin v Shea [2010] NSWCA 371 Category: Costs Parties: Durcan Isin (First Plaintiff) Ertunc Yasar Ozen (Second Plaintiff) Nur Seda Ozen (Defendant) Representation: Counsel: R.P.V. Carey (Plaintiffs) J. O'Connor (Defendant) Solicitors: MCK Lawyers (Plaintiffs) Pelosi & Associates (Defendant) File Number(s): 2013/38173 Publication restriction: No

EX TEMPORE Judgment

Summary 1. The hearing of these proceedings commenced before me on Tuesday, 14 July 2015 with an estimate of three hearing days. In circumstances which are set out below it became necessary to vacate the hearing on the afternoon of that first day on the application of the plaintiffs. 2. This judgment deals with who should pay the costs thrown away by reason of the vacation of the hearing. The plaintiffs submit that those costs should be costs in the cause. The defendant submits that the plaintiffs should pay those costs on either the indemnity or ordinary basis. Having given the plaintiffs the opportunity to file evidence on the question and heard the respective parties' submissions, the Court has come to the view that in the exercise of its discretion the just costs order is for the costs thrown away by reason of the vacation of the hearing to be the defendant's costs in the cause.