Australia, May 27 -- New South Wales Land and Environment Court issued text of the following judgement on April 28:

1. On 8 April 2025, I handed down the principal judgment dismissing the cross-claim: Serves Pty Ltd atf The Rosemont Trust v Roche (Deceased); Roche (Deceased) v Serves Pty Ltd atf The Rosemont Trust [2025] NSWSC 336.

2. Definitions in the principal judgment are used here.

3. On 25 May 2023, Robb J, by consent, made orders under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the Property. The orders included the standard ones appointing trustees for sale, but they also included a stay of those orders for some months, together with orders which would operate during the period of the stay, to enable a cooperative sale. The evidence before me, principally by way of an affidavit of Serves' solicitor, Peter Leigh Harrison, sworn 24 April 2025, establishes that Hamilton failed to cooperate. The result was that the stay ceased to operate by effluxion of time (but not before Serves filed a motion to have it lifted because of Hamilton's non-cooperation) and the Property was ultimately sold by the trustees for sale, as the principal judgment records.

4. The orders provided that Serves' costs of the Summons be paid out of the proceeds of sale of the Property and that Hamilton's costs in respect of the Summons be reserved.

5. In the principal judgment, I provisionally ordered that the cross-claimant (Hamilton) pay the costs of the cross-defendant (Serves) of the cross-claim, unless a party sought some other orders. Other orders have been sought.

6. Robb J has retired. He is unavailable to determine the question of costs reserved.

7. This judgment deals with the reserved costs and the costs of the cross-claim.

8. Hamilton seeks an order that her costs of the Summons for orders under s 66G of the Conveyancing Act only for the period 19 to 25 May 2023 inclusive, be paid out of the proceeds of sale of the Property. She concedes that there should be an order for her to pay Serves' costs of the cross-claim on the ordinary basis and seeks that her costs of the cross-claim be paid out of the estate on an indemnity basis, but excluding those costs relating to cross-claims she advanced or sought to advance in her capacity as a beneficiary of the JJR Investment Trust (JJRIT) (the residuary trustee beneficiary of the estate). Those particular cross-claims were dismissed by Peden J as is referred to later. There was no appeal.

9. Serves seeks an order that Hamilton pay its costs of the cross-claim on the indemnity basis from 29 August 2023, when Serves made a Calderbank offer to Hamilton, which offer Serves says Hamilton, acting unreasonably, declined to accept.

10. Roche resists any order that any of Hamilton's costs be paid out of the proceeds of sale of the Property. She resists any payment of Hamilton's costs of the cross-claim out of the estate. She seeks an order against Hamilton for her costs of the costs argument.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1967a8f86cfb88c719d7f8bb)

Disclaimer: Curated by HT Syndication.