Turner v O’Bryan-Turner (No 2) [2019] NSWSC 1774

Supreme Court New South Wales

Medium Neutral Citation: Turner v O'Bryan-Turner (No 2) [2019] NSWSC 1774 Hearing dates: On the papers Date of orders: 13 December 2019 Decision date: 13 December 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. The defendants (the applicants on the motion) pay the costs thrown away by the successive iterations of the notice of motion ultimately heard on 21 June 2019. 2. Otherwise, costs of the notice of motion heard on 21 June 2019 be costs in the cause. Catchwords: COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause – where the applicants were successful however no costs order should be made in light of the conduct of the proceedings to date and the fact that there had been numerous iterations of the notice of motion – where the conduct of the respondents has also been unsatisfactory – held that the appropriate course is to order that costs of the motion be costs in the cause other than the costs thrown away by the successive iterations of the notice of motion by the applicants. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98, 99 Supreme Court Act 1970 (NSW), s 198M Uniform Civil Procedure Rules 2005 (NSW), rr 7.10, 42.1, 42.7 Cases Cited: Fountainhead Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 Myers v Elman [1940] AC 282 Owen John Turner by his Tutor Nicholas John Turner v Wendy Joan O'Bryan Turner [2018] NSWSC 1140 Roache v News Groups Ltd [1998] E.M.L.R 161 Turner v O'Bryan-Turner [2019] NSWSC 1340 Turner v O'Bryan-Turner [2019] NSWSC 258 Whyte v Brosch (1998) 45 NSWLR Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths Australia) Practice Note SC Gen 5 Category: Costs Parties: Owen John Turner bht Nicholas John Turner (First Plaintiff) Allawah Pastoral Pty Ltd (Second Plaintiff/Second Cross-Defendant) Nicholas John Turner (Third Plaintiff/First Cross-Defendant) Wendy Joan O'Bryan-Turner (First Defendant/First Cross-Claimant) David John Turner (Second Defendant) Karl John Turner (Third Defendant) Registrar-General, Land & Property Information (Fourth Defendant) Representation: Counsel: J Svehla and D Paratore (Plaintiffs/Respondents on the Motion) G Curtin SC with MM Pringle (First to Third Defendants/First Cross-Claimant/ Applicants on the Motion)