Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Fearndale Holdings [2019] NSWSC 1895. We will talk about the notions involved with a litigation matter finishing before a final hearing.

Often, if a piece of litigation gets to final hearing ‘costs follow the event’: UCPR r42.1. Put another way: at the end, the loser pays the legal costs incurred by the winner. But what if a matter finishes before a final hearing? __ A party sought orders including replacing an administrator. They said an administrator had been slow to sell some land. The delays were due to other litigation. The land was eventually sold. The administrator could not have gone ahead with the sale until the other litigation was finalised: [3] The applicant accepted that once the sale was completed, the basis for replacing the administrator fell away: [4] That was the end of the application and the parties then turned their attention to costs… ___ The Court said the administrator was always trying to make a good sale of the property, only delayed by the other litigation. That other litigation had to be finalised for a sale to go ahead. It’s not obvious any other administrator would have done better or moved faster: [6] For these reasons, the applicant would have very likely lost at final hearing, meaning it had to pay the administrator’s and the company’s costs: [7]