Australia, April 26 -- New South Wales Land and Environment Court issued text of the following judgement on March 25:

1. There is one outstanding issue in these proceedings. It concerns costs. Background

2. The proceedings concern real property located at Wattle Grove in Tasmania (Property). The Plaintiff is, or was, the tenant of the Property. The Defendant is the registered owner of the Property.

3. On 13 July 2021, the Defendant commenced proceedings in the Magistrates Court of Tasmania, seeking an order for vacant possession of the Property. Those proceedings are currently in abeyance.

4. The Plaintiff commenced these proceedings on 28 February 2022 in the Supreme Court of Tasmania. It alleged that the Defendant holds the Property on trust for the Plaintiff. A Statement of Claim was filed on 14 June 2022.

5. On 14 July 2022, the Defendant filed a Defence and a Counterclaim. By the Counterclaim, the Defendant sought an order for possession of the Property.

6. On 3 July 2024, the Defendant filed an Amended Defence and Counterclaim, which maintained the claim for possession of the Property.

7. The final hearing of the matter was listed to commence on 5 August 2024 in the Supreme Court of Tasmania. Prior to the final hearing, on 9 July 2024, the Supreme Court of Tasmania acceded to the Plaintiff's application that the proceedings be transferred to this Court.

8. On 29 August 2024, the Defendant filed a Notice of Motion in this Court seeking, among other things, an order that the claim be summarily dismissed.

9. The Notice of Motion was fixed to be heard on 14 March 2025.

10. On 6 March 2025, the Plaintiff proposed orders contemplating that its claim be dismissed, the Plaintiff to deliver vacant possession of the Property, and the Plaintiff would pay the Defendant's costs of the proceedings on the ordinary basis. This was a capitulation by the Plaintiff.

11. On 14 March 2025, there was some debate about the appropriate form of orders. I made the following orders:

1) The Writ filed on 28 February 2022 by the Plaintiff be dismissed.

2) The Statement of Claim filed on 14 June 2022 by the Plaintiff be dismissed.

3) The Plaintiff is to deliver vacant possession of the property known as 850 Cygnet Coast Road, Wattle Grove Tasmania, having Tasmania recorder of titles volume 47314 folio 2 by 17 March 2025.

4) The amount of $23,530 held in the trust account of Cronin Miller Litigation pending further order of the Court or agreement between the parties is to be released to the Defendant's nominated bank account within seven days of today's date.

5) The Counterclaim set out in the Defence filed on 3 July 2024 is otherwise dismissed.

6) The proceedings are stood over to 21 March 2025, pending compliance with orders 3 and 4.

7) Grant leave to the Defendant Cross-Claimant to apply for further orders in the event that orders 3 and 4 are not complied with.

8) Grant liberty to the Defendant's representatives to email agreed orders to my Associate vacating the listing on 21 March 2025, if orders 3 and 4 are complied with.

9) Otherwise, the question of whether or not costs in the proceedings should be payable on an indemnity basis from 2 July 2024 is reserved.

12. I considered these orders, and in particular orders (6) and (7), were appropriate and convenient against the possibility that vacant possession was not delivered by 17 March 2025. I understand that vacant possession was delivered. The listing on 21 March 2025 was duly vacated.

13. The orders made on 14 March 2025 did not deal with the question of costs. The Plaintiff maintained its position that the appropriate order was that the Plaintiff would pay the costs of the proceedings on the ordinary basis. The Defendant's position was that the Plaintiff should pay the Defendant's costs of the proceedings, including the costs of the Notice of Motion filed on 29 August 2024, on an indemnity basis from 2 July 2024. These reasons deal with that question.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195caf2cdb9ceadbac289c4a)

Disclaimer: Curated by HT Syndication.