Australia, June 27 -- New South Wales Land and Environment Court issued text of the following judgement on May 26:

1. The relevant background in this matter is set out in my reasons given on 23 April 2025 in Scott v Kennedy [2025] NSWSC 386, which I need not repeat in any detail.

2. In short, while once united, the first and second plaintiffs have gone their separate ways. By one means or another, the second plaintiff and the defendants have been seeking to bring the proceedings between them to an end. That has been pursued with haste and vigour for reasons I do not understand. It is evident that this litigation is bitterly fought.

3. By email dated 14 May 2025, the solicitors for the second plaintiff (under administration) wrote to my Associate asking that, with the consent of the defendants, I make orders dated 13 May 2025 in chambers, by which the proceedings by the second plaintiff against the defendants are dismissed with costs. I declined to make those orders in chambers because it was obvious that the first plaintiff would likely wish to be heard, and would be entitled to be heard, about whether the Court should make those orders.

4. On 22 May 2025, the first plaintiff filed a notice of motion seeking orders as follows:

1. The Court not consider making the orders reflected in the short minutes of order dated 13 May 2025 until:

(a) this motion is heard and determined and;

(b) the finalisation of the proceedings in the Federal Court of Australia brought by the first plaintiff against the second plaintiff and its administrators.

2. That the $145,000 paid into court as security for the defendants' costs by the first plaintiff on 9 August 2024, be transferred back to the first plaintiff.

5. On 23 May 2025 when the matter came before me, the respective Counsel for the second plaintiff and the defendants confirmed that there is an agreement between them in relation to the proceedings and joined in asking the Court to make orders dismissing those proceedings with costs. Pursuant to UCPR r 36.1A. The first plaintiff contended I should not make those orders, at least not at this time.

6. It seems on the evidence that there is a continuing debate about whether an agreement between the second plaintiff and the defendants was struck at some earlier time. It was always problematic for the Court to conclude that there was an agreement so long as the second plaintiff, although a party to the proceedings, did not appear and submit that there is an agreement, and there was otherwise underwhelming evidence to prove the agreement. That has now changed because the second plaintiff, through Senior Counsel, now appears and seeks the orders. Any debate about exactly when any agreement was struck is arid.

7. Where parties join in proposing orders to dismiss proceedings between them, those orders should generally be made unless there is good reason to decline to do so.

8. The first plaintiff submitted that the Court should decline to make the orders, essentially for two reasons.

9. The first reason is that the order would cause him prejudice in relation to security for costs that had been given by the second plaintiff but which he had funded. That explains why his notice of motion seeks an order that the $145,000 paid into Court as security for the defendants' costs by the first plaintiff be transferred back to him. The question about costs has complications, and the defendants, understandably, were not ready to deal with prayer 2 of the first plaintiff's notice of motion on 23 May 2025. Senior Counsel for the defendants offered an undertaking to the effect that the defendants will not seek a release of the money from Court unless and until prayer 2 of this notice of motion is determined, except with leave of the Court.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1971529b06f50d6892696784)

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