Gazzana v Tully Park Pty Ltd

Parties: Antonio Gazzana (First Plaintiff/Cross-Defendant)
N.J.M Corporations Pty Ltd (Second Plaintiff)
Tully Park Pty Ltd (First Defendant)
Joseph Pirrello (Second Defendant)
Tokyo Holdings Pty Ltd (Third Defendant/Cross-Claimant)
Christine Pirrello (Fourth Defendant)

Representation: Counsel:
G George (Second Plaintiff)
Solicitors:
Pateman Legal (Second Plaintiff)
Finn Roache Lawyers (Third Defendant)

File Number(s): 2023/00276294

Publication restriction: Nil

JUDGMENT

1. On 19 September 2025, I made orders in relation to two notices of motion. The first was a motion filed by the second plaintiff (NJM) on 2 September 2025 seeking an extension of a caveat (Caveat Motion). The second was a motion filed by the third defendant (Tokyo) on 15 September 2025 seeking payment of $78,634.86 out of its solicitor’s trust account (Payment O****ut Motion).

2. In relation to the Caveat Motion, the caveat was not extended as NJM sought, but an injunction was granted restraining Tokyo from dealing or encumbering the property without giving prior notice to NJM, together with ancillary orders concerning provision of financial information and payment of sale proceeds.

3. In relation to the Payment Out Motion, by consent, I ordered for the monies held in the trust account to be released to Tokyo.

4. The costs of both motions were reserved.

5. These reasons determine the appropriate costs orders for both motions. I deal separately with each of the motions. The principles are not in dispute.

Caveat motion

6. NJM seeks that there be no order as to the costs of the Caveat Motion with the intent that each party bears its own costs.

7. NJM submits that the orders ‘gave both parties something but not what they sought’ and that ‘[n]either party can claim an “event” occurred so that an entitlement to costs accrues’.

8. Tokyo sought an order that the costs of the Caveat Motion be costs in the cause.

9. In my view, both parties had a measure of success in relation to the Caveat Motion and as such the costs of the Caveat Motion should be costs in the cause.

Payment Out Motion

10. NJM seeks that there be no order as to the costs of the Payment Out Motion with the intent that each party bears its own costs.

11. NJM submits that it consented to the payment out of the trust account ‘at the first opportunity once they had considered the evidence’ and that as there is no “event”, no entitlement to costs accrues.

12. Tokyo seeks an order that the Plaintiffs pay Tokyo’s costs of the Payment Out Motion.

13. Tokyo submits that in accordance with the principle in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin) at 624–625 per McHugh J, the Court ought to make an order for costs even though there has been no hearing on the merits. Tokyo submits that the Plaintiffs acted both unreasonably in demanding payments and withholding consent to the payment out and also capitulated in consenting to the orders the day before the motion was due to be heard.

14. In reply, NJM submits that it did not act unreasonably as it was unaware of Tokyo’s impecuniosity until 15 September 2025 after which time NJM acted reasonably and pragmatically in consenting to the orders on 18 September 2025.

15. I am not satisfied that the Court should make an order for costs of the Payment Out Motion. There has been no hearing on the merits and there is no reason in the circumstances to depart from the usual rule in Lai Qin: see Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 at [2] per Basten JA.

16. First, I am not satisfied the Plaintiffs acted unreasonably in withholding consent of the payment of the funds until after a consideration of the evidence filed in support of the motion.

17. Prior to the Payment Out Motion being filed, NJM was on notice since 8 July 2025 that Tokyo might seek to deal with the proceeds, including the surplus funds, in the ordinary course of its business. Absent consent, an application to the Court would be necessary. On 25 August 2025, Tokyo informed NJM that it required the payment out of the funds to ‘continue operating its business’ and meet the ‘monthly mortgage repayments’ and ‘strata levies’, and sought consent. No consent was forthcoming.

18. The withholding of consent necessitated the Payment Out Motion being brought on 15 September 2025. The evidence of the motion disclosed the parlous financial position of Tokyo and thus the need for the surplus funds to be released.

19. Second, I am not satisfied that the Plaintiffs effectively capitulated in consenting to the Payment Out Motion on the eve of the hearing.

20. At 11.08am on 18 September 2025, NJM initially offered to consent to the payment out of funds on the condition of the caveat being extended. At 2.30pm on 18 September 2025, Tokyo rejected this offer and provided a counter-offer of the funds being paid out, the caveat being lifted and a number of undertakings being provided by Tokyo. At 4.06pm on 18 September 2025, NJM agreed solely to the funds being paid out and rejected the remainder of Tokyo’s offer.

21. I accept that it was a consideration of that evidence that caused NJM to consent.

22. I am not satisfied that NJM’s conduct warrants an order that they pay the costs of the Payment Out Motion. Given the nature of the allegations made in the proceedings and the conduct of them to date, each party obviously has a healthy degree scepticism of the motives of the other. In the context of the Payment Out Motion I do not regard NJM’s conduct in waiting for the evidence on the motion to be so unreasonable as to justify an order that NJM pay the costs of the motion.

Orders

23. The orders of the Court are:

24. Costs of the motion filed by N.J.M Corporations Pty Ltd on 2 September 2025 be costs in the cause.

25. There be no order as to costs of the motion filed by Tokyo Holdings Pty Ltd on 15 September 2025, to the intent that each party bears its own costs of the motion.

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