Josey v InvestaFox Pty Limited [2021] NSWSC 827

“The proceedings were dismissed, so pay my costs!”
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P commenced legal proceedings seeking specific performance of a deed that saw D grant P a drainage easement.

Shortly afterwards, the proceedings were dismissed by agreement.

When proceedings are dismissed the plaintiff ought to pay the defendant’s costs, unless the Court says otherwise: UCPR r42.20

P said D had engaged in unreasonable delay in relation to the deed, forcing P to commence proceedings: [4]

D said the deed had not been entered into properly before the proceedings were commenced: [5]

There was a degree of delay of delay and disorganisation about entering into the deed, and confusion about when the counterparts were executed: [6]

There was some suggestion that D might have engaged in unreasonable delay, but there was also a complaint that it took P the best part of a year to pay an $800 invoice required by the deed: [7]

Due to the delay in progressing the matter, the Court found it was not unreasonable for P to have commenced proceedings: [8]

However, the Court ordered each party to pay its own costs: [9]

This judgment confirms that a plaintiff may stand disappointed if it relies too heavily on r42.20 to carry the day.