Kerry Albert Pty Ltd t/as Kerry Albert & Co v Fuller (No 2) [2018] NSWDC 383

District Court New South Wales

Medium Neutral Citation: Kerry Albert Pty Ltd t/as Kerry Albert & Co v Fuller (No 2) [2018] NSWDC 383 Hearing dates: 16 November 2018 Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Civil Before: Dicker SC DCJ Decision: In relation to the plaintiff's application to vary the costs order made on 7 September 2018 by the court, I make the following orders: (1) Order 4 made on 7 September 2018 is vacated. (2) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the defendants are to pay the plaintiff's costs of the Notice of Motion filed 19 July 2018 in the specified gross sum of $15,684.37. (3) I will hear the parties on the costs of the application. (4) The plaintiff's application in relation to costs is otherwise dismissed. In relation to the Notice of Motion filed 28 September 2018 by the defendants: (1) The Notice of Motion filed 28 September 2018 is dismissed. (2) The defendants are to pay the plaintiff's costs of the Notice of Motion filed 28 September 2018 as agreed or assessed. Catchwords: Judgments – orders – whether orders made by the court should be set aside on the basis that they were made irregularly – whether court should set aside or vary judgment or orders as a matter of discretion – whether the defendants should be granted leave to reopen hearing of Notice of Motion finally determined

Contract – penalty – whether clause in an agreement was a penalty – where on default there was a payment uplift factor