Somerville Legal Pty Limited and v Franz Boensch; Franz Boensch v Somerville Legal Pty Limited [2019] NSWSC 267

Supreme Court New South Wales

Medium Neutral Citation: Somerville Legal Pty Limited and v Franz Boensch; Franz Boensch v Somerville Legal Pty Limited [2019] NSWSC 267 Hearing dates: 13 March 2019 Date of orders: 13 March 2019 Decision date: 13 March 2019 Jurisdiction: Equity Before: Henry J Decision: (1) The plaintiff's claim, as set out in the amended statement of claim dated 30 October 2017, be discontinued on the application of the plaintiff under UCPR r 12.1. (2) The Deed of Agreement and Mortgage dated 21 September 2015 between the defendant/cross-claimant and the plaintiff/cross-defendant (Deed) be set aside. (3) Direct the plaintiff/cross-defendant to withdraw caveat number AK72913T in respect of Folio 7366-5. (4) The plaintiff/cross-defendant to pay the defendant/cross-claimant's costs of the proceedings, including the costs of the hearing on 13 March 2019, except where the defendant/cross-claimant has otherwise been ordered to pay the plaintiff/cross-defendant's costs pursuant to prior orders of this Court in these proceedings. (5) Otherwise, dismiss the cross-claim dated 9 May 2017. (6) Note the undertaking given by the plaintiff/cross-defendant to the Court not to take any steps to enforce or otherwise rely on the Deed. Catchwords: COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed

COSTS — Indemnity basis— Bases of quantification — No circumstances to justify special order for costs Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Contracts Review Act 1980 (NSW) Real Property Act 1900 (NSW) s 74P Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 42.1, 42.2, 42.5, 42.19 Cases Cited: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Freelancer International Pty Ltd v Matthew O'Kane [2019] NSWSC 159 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) (2008) 65 ACSR 324 Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Costs Parties: Somerville Legal Pty Limited (Plaintiff/Cross-Defendant) Franz Boensch (Defendant/Cross-Claimant) Representation: Counsel: J Emmett (Plaintiff/Cross-Defendant)