Horswill v McClellan (No 2) [2019] NSWSC 964

Supreme Court New South Wales

Medium Neutral Citation: Horswill v McClellan (No 2) [2019] NSWSC 964 Hearing dates: On the papers Date of orders: 30 July 2019 Decision date: 30 July 2019 Jurisdiction: Equity Before: Darke J Decision: Order that the first defendant pay the plaintiffs' costs of the proceedings on the ordinary basis. Catchwords: COSTS – departure from the usual rule – application by the plaintiffs' for indemnity costs – whether the first defendant's resistance to the plaintiffs' claim for specific performance of an oral agreement for the sale of land had no real prospects of success – where the first defendant's evidence was materially similar to the plaintiffs' evidence – where the first defendant did not substantiate certain claims in his Amended Defence – first defendant's resistance held not to be unreasonable – first defendant ordered to pay the plaintiffs' costs on the ordinary basis Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Contracts Review Act 1980 (NSW) Conveyancing Act 1919 (NSW), s 54A Statute of Frauds 1677, 29 Car II c 3 Cases Cited: Harrison v Schipp [2001] NSWCA 13 Horswill v McClellan [2019] NSWSC 557 Hurstville Municipal Council v Connor (1991) 24 NSWLR 724 James v Douglas [2016] NSWCA 178 Main-Road Property Group v Pelligra & Sons Pty Ltd (No 2) [2009] VSC 174 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Pipikos v Trayans [2018] HCA 39; (2018) 92 ALJR 880 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Category: Costs Parties: Robert Leslie Horswill (First Plaintiff) Kim Maree Horswill (Second Plaintiff) Adam Leslie McClellan (First Defendant) Jennifer Anne McClellan (Second Defendant) Representation: Counsel: Mr D C Price (Plaintiffs)