HILLSTON v BAR-MORDECAI

Supreme Court of NSW|2003-04-04|Before: Bryson J, Black CJ

The application was of an extraordinary kind, made necessary by the improper practice adopted by the defendant for filing repeated and groundless notices of motion. In the circumstances the costs should be on the indemnity basis. See Order 11. 20 On 16 April 1999 Master McLaughlin, by an interlocutory order in proceedings 3240 of 1998 (Undue Influence) ordered under s.66G of the Conveyancing Act 1919 that the Eastbourne Avenue property be sold and ordered that the costs of each party of the Notice of Motion and of the sale be paid out of the proceeds of sale. The plaintiff asked me to vary this order so as to provide for payment of the plaintiff's costs by the defendant, and to take away the defendant's entitlement to payment of costs out of the proceeds of sale. I am not prepared to do this as the order was a considered order made by Master McLaughlin and in the circumstances of the time was made on reasonable grounds; it has been entered and should not now be vacated. However I will make an order that the plaintiff's costs and expenses be included in the costs recoverable against the defendant. See Order 12. 21 The plaintiff asked that I make the following order in each case: 5. In addition to all other rights to recover costs he may now or hereafter have, Allan David James Hillston be entitled to recover any costs as ordered herein from any part of the estate of the late Eveline Hillston which is the subject of a devise or bequest to Michael Jacob Bar-Mordecai under the will of the late Eveline Hillston.

(2) Order that defendant pay the plaintiff's costs of the defendant's Notice of Motion of 5 October 2001.

(3) Order that the plaintiff's costs of the defendant's Notice of Motion of 11 October 2001 (also referred to as 15 October 2001) ordered to be paid by the defendant by order of 26 October 2001 be assessed on the indemnity basis

(4) Order that the defendant pay the plaintiff's costs of the defendant's Notice of Motion of 26 October 2001: and further order that the costs of the hearing of the defendant's Notice of Motion of 26 October 2001 be assessed on the indemnity basis. (5) Order that the defendant pay the plaintiff's costs of and occasioned by amendment of the Defence by the Defence filed in Court on 7 November 2001. (6) Order that the costs of the defendant's Notice of Motion of 4 March 2002 which the defendant was ordered to pay by order of 15 March 2002 be assessed on the indemnity basis. (7) Order that the defendant is to pay the plaintiff's costs of the defendant's Notice of Motion of 27 March 2002, such costs to be assessed on the indemnity basis. (8) Order that the costs payable by the defendant of the Notice of Motion of 15 April 2002 under the Court's order of 30 April 2002 be assessed on the indemnity basis. (9) Order that costs of the defendant's Notice of Motion of 1 May 2002 which the defendant was ordered to pay to the plaintiff by order of 24 May 2002 be assessed on the indemnity basis.

(10) Order that the costs of the defendant's Notice of Motion of 14 May 2002 which the defendant was ordered to pay to the plaintiff by order on 24 May 2002 be assessed on the indemnity basis.

(11) Order that the costs of the plaintiff's Notice of Motion of 8 May 2002 which the defendant was ordered to pay to the plaintiff by order of 31 May 2002 be assessed on the indemnity basis. (12) Direct that the costs and expenses of the plaintiff of and incidental to the application for an order under s.66G of the Conveyancing Act 1919, the order of 16 April 1999 and the sale under that order be allowed to the plaintiff as part of the costs of the proceedings recoverable by the plaintiff against the defendant. 23 Orders in Proceedings 1707/99 Order that the plaintiff pay the defendant's costs of the proceedings including costs of interlocutory applications and reserved costs: and further order that those costs be assessed on the indemnity basis. 24 Orders in Proceedings 3039/02 Order that the plaintiff pay the defendant's costs of the proceedings including costs of interlocutory applications and reserved costs: and further order that those costs be assessed on the indemnity basis. **********

Last Modified: 04/16/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : HILLSTON v BAR-MORDECAI [2003] NSWSC 231 HEARING DATE(S) : 28/03/2003 JUDGMENT DATE : 4 April 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Indemnity costs in some cases see [22-24]

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