Tanilba Beach Pty Limited v JR & JB Pty Limited (No 2) [2018] NSWSC 1250

Supreme Court New South Wales

Medium Neutral Citation: Tanilba Beach Pty Limited v JR & JB Pty Limited (No 2) [2018] NSWSC 1250 Hearing dates: 6 August 2018 Date of orders: 06 August 2018 Decision date: 06 August 2018 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) I decline to issue the writ of execution or a writ of possession.

(2) The notice of motion filed 20 December 2018 is dismissed.

(3) The second defendant is to pay the plaintiff's costs of today otherwise there is no order as to costs as to the notice of motion. Catchwords: No point of principle – outstanding costs orders – whether writ of possession or writ of execution should issue Category: Procedural and other rulings Parties: Reavill Farm Pty Ltd, Champions Quarry Pty Limited, Macabil Pty Limited, Jeffrey Francis Champion and Diana Christine Champion (Applicants) John Llewellyn Burrell (Second Defendant) Representation: Counsel: M Jaireth (Applicants) L T Livingston (Second Defendant)

Solicitors:

Resolve Litigation Lawyers (Applicants) Burrell Solicitors (Second Defendant) File Number(s): 2012/195040 Publication restriction: Nil

EX TEMPORE Judgment (revised) 1. HER HONOUR: By notice of motion filed 20 December 2016, the Champion Interests sought an order that they be granted leave to issue a writ for the levy of property or a writ of execution against the judgment debtor. 2. On 9 March 2018, I delivered judgment in Tanilba Beach Pty Limited v JR & JB Pty Limited [2018] NSWSC 288 ("Tanilba Beach"). There has been a protracted history of litigation which is not in dispute. In Tanilba Beach at [26] to [28], I set out the history and the position of the parties. The amount of the assigned judgment debt claimed by the Champion Interests, including interest and costs up to 13 December 2016 and payable by Mr Burrell, is for the sum of $691,272.32. (at [26]). The net amount payable by the Champion Interests to Mr Burrell in the primary and Court of Appeal proceedings is $680,000 plus $253,610, totalling $933,610. The net amount payable by Mr Burrell to the Champion Interests is $876,272.32. (at [27]). If the amounts owing by each party are set off, it is estimated that Mr Burrell will come out out ahead in the sum of $57,337.68, albeit it will probably turn out somewhat less once his bills of costs have been assessed. (at [28]). I ordered Mr Burrell or BS Legal to serve a bill of costs ("bill of costs") comprising of the solicitor's costs and disbursements incurred in the primary proceedings on the Champion Interests by 1 June 2018. The notice of motion was stood over to 12 June 2018 before me for mention. 3. On 12 June 2018, this bill of costs had still not been prepared. I extended the time for serving the bill of costs to 5:00 pm on 27 July 2018. I made an order that save for exceptional circumstances; a writ of execution was to be issued on 27 July 2018, and listed to the matter before me today for directions. 4. Part of the claim that Champion Interests say is owed by Mr Burrell relates to proceedings numbered 2013/386077 in the sum of $119,985. However, this is an estimate only as no bill of costs had been prepared as at 9 March 2018 and one has not been prepared to date. My understanding is that a costs consultant is currently preparing a bill of costs that will be served on Mr Burrell. In other words, some months have passed without the Champion Interests taking steps to prepare a bill of costs.