Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas (No 2) [2019] NSWSC 1472

Supreme Court New South Wales

Medium Neutral Citation: Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas (No 2) [2019] NSWSC 1472 Hearing dates: 4 October 2019 Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The plaintiff is to pay all of the defendant's costs in relation to and incidental to the proceedings and the notice of motion. Catchwords: COSTS – defendant successful on notice of motion – plaintiff given opportunity to make submissions as to costs – no submissions received – costs order made in favour of the defendant Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12 Cases Cited: Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas [2019] NSWSC 1376 Category: Costs Parties: Gennacker Pty Ltd trading as Homestead Holiday Park (Plaintiff) Jacques Fontainas (Defendant) Representation: Counsel: A Morris QC/L A Jurth (Plaintiff) M McMahon (Defendant)

Solicitors: Worcester & Co Solicitors (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/219385 Publication restriction: Nil

Judgment 1. On 11 October 2019 pursuant to a notice of motion filed by the defendant, I provided a judgment to the parties declining to exercise jurisdiction in the proceedings pursuant to Rule 12.11(1)(h) of the Uniform Civil Procedure Rules 2005 (NSW): Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas [2019] NSWSC 1376. 2. I made orders requesting the plaintiff file and serve written submissions by 18 October 2019 as to any alternative costs order for which it contends, noting that the defendant had sought a costs order that the plaintiff pay all of the defendant's costs in relation to and incidental to the proceedings and the notice of motion. 3. No submissions were received. 4. Given the defendant succeeded in full on its notice of motion, and given my finding that the proceedings – still in their early stages – should have been commenced as an appeal in the New South Wales Civil and Administrative Tribunal and not this court, the proper costs order that reflects those findings is in the form of the order sought by the defendant.