Gazzana v Tully Park Pty Ltd

Supreme Court

New South Wales

Case Name:	Gazzana v Tully Park Pty Ltd
Medium Neutral Citation:	[2025] NSWSC 1285
Hearing Date(s):	On the papers
Date of Orders:	30 October 2025
Decision Date:	30 October 2025
Jurisdiction:	Equity - Real Property List
Before:	Pike J
Decision:	(1) Costs of the motion filed by N.J.M Corporations Pty Ltd on 2 September 2025 be costs in the cause. (2) There be no order as to costs of the motion filed by Tokyo Holdings Pty Ltd on 15 September 2025, to the intent that each party bears its own costs of the motion.
Catchwords:	COSTS – Costs orders in interlocutory proceedings – appropriate order where measure of success to all parties – appropriate order where no final determination of motion necessary – no question of principle
Legislation Cited:	Nil
Cases Cited:	Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Texts Cited:	Nil
Category:	Costs
Parties:	Antonio Gazzana (First Plaintiff/Cross-Defendant) N.J.M Corporations Pty Ltd (Second Plaintiff) Tully Park Pty Ltd (First Defendant) Joseph Pirrello (Second Defendant) Tokyo Holdings Pty Ltd (Third Defendant/Cross-Claimant) Christine Pirrello (Fourth Defendant)
Representation:	Counsel: G George (Second Plaintiff) Solicitors: Pateman Legal (Second Plaintiff) Finn Roache Lawyers (Third Defendant)
File Number(s):	2023/00276294
Publication Restriction:	Nil

JUDGMENT

On 19 September 2025, I made orders in relation to two notices of motion. The first was a motion filed by the second plaintiff (NJM) on 2 September 2025 seeking an extension of a caveat (Caveat Motion). The second was a motion filed by the third defendant (Tokyo) on 15 September 2025 seeking payment of $78,634.86 out of its solicitor’s trust account (Payment Out Motion).
In relation to the Caveat Motion, the caveat was not extended as NJM sought, but an injunction was granted restraining Tokyo from dealing or encumbering the property without giving prior notice to NJM, together with ancillary orders concerning provision of financial information and payment of sale proceeds.
In relation to the Payment Out Motion, by consent, I ordered for the monies held in the trust account to be released to Tokyo.
The costs of both motions were reserved.
These reasons determine the appropriate costs orders for both motions. I deal separately with each of the motions. The principles are not in dispute.

Caveat motion

NJM seeks that there be no order as to the costs of the Caveat Motion with the intent that each party bears its own costs.
NJM submits that the orders ‘gave both parties something but not what they sought’ and that ‘[n]either party can claim an “event” occurred so that an entitlement to costs accrues’.
Tokyo sought an order that the costs of the Caveat Motion be costs in the cause.
In my view, both parties had a measure of success in relation to the Caveat Motion and as such the costs of the Caveat Motion should be costs in the cause.

Payment Out Motion

NJM seeks that there be no order as to the costs of the Payment Out Motion with the intent that each party bears its own costs.
NJM submits that it consented to the payment out of the trust account ‘at the first opportunity once they had considered the evidence’ and that as there is no “event”, no entitlement to costs accrues.
Tokyo seeks an order that the Plaintiffs pay Tokyo’s costs of the Payment Out Motion.
Tokyo submits that in accordance with the principle in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin) at 624–625 per McHugh J, the Court ought to make an order for costs even though there has been no hearing on the merits. Tokyo submits that the Plaintiffs acted both unreasonably in demanding payments and withholding consent to the payment out and also capitulated in consenting to the orders the day before the motion was due to be heard.
In reply, NJM submits that it did not act unreasonably as it was unaware of Tokyo’s impecuniosity until 15 September 2025 after which time NJM acted reasonably and pragmatically in consenting to the orders on 18 September 2025.
I am not satisfied that the Court should make an order for costs of the Payment Out Motion. There has been no hearing on the merits and there is no reason in the circumstances to depart from the usual rule in Lai Qin: see Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 at [2] per Basten JA.
First, I am not satisfied the Plaintiffs acted unreasonably in withholding consent of the payment of the funds until after a consideration of the evidence filed in support of the motion.
Prior to the Payment Out Motion being filed, NJM was on notice since 8 July 2025 that Tokyo might seek to deal with the proceeds, including the surplus funds, in the ordinary course of its business. Absent consent, an application to the Court would be necessary. On 25 August 2025, Tokyo informed NJM that it required the payment out of the funds to ‘continue operating its business’ and meet the ‘monthly mortgage repayments’ and ‘strata levies’, and sought consent. No consent was forthcoming.
The withholding of consent necessitated the Payment Out Motion being brought on 15 September 2025. The evidence of the motion disclosed the parlous financial position of Tokyo and thus the need for the surplus funds to be released.
Second, I am not satisfied that the Plaintiffs effectively capitulated in consenting to the Payment Out Motion on the eve of the hearing.
At 11.08am on 18 September 2025, NJM initially offered to consent to the payment out of funds on the condition of the caveat being extended. At 2.30pm on 18 September 2025, Tokyo rejected this offer and provided a counter-offer of the funds being paid out, the caveat being lifted and a number of undertakings being provided by Tokyo. At 4.06pm on 18 September 2025, NJM agreed solely to the funds being paid out and rejected the remainder of Tokyo’s offer.
I accept that it was a consideration of that evidence that caused NJM to consent.
I am not satisfied that NJM’s conduct warrants an order that they pay the costs of the Payment Out Motion. Given the nature of the allegations made in the proceedings and the conduct of them to date, each party obviously has a healthy degree scepticism of the motives of the other. In the context of the Payment Out Motion I do not regard NJM’s conduct in waiting for the evidence on the motion to be so unreasonable as to justify an order that NJM pay the costs of the motion.

Orders

The orders of the Court are:
(1)Costs of the motion filed by N.J.M Corporations Pty Ltd on 2 September 2025 be costs in the cause.
(2)There be no order as to costs of the motion filed by Tokyo Holdings Pty Ltd on 15 September 2025, to the intent that each party bears its own costs of the motion.
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The case of Gazzana v Tully Park Pty Ltd involved a dispute between the plaintiff, Gazzana, and the defendant, Tully Park Pty Ltd. The matter was heard in the Supreme Court of Queensland. The plaintiff sought to recover possession of property from the defendant, and the dispute centred around the interpretation of certain contractual provisions and the applicability of certain legal principles. The defendant, in turn, argued that the plaintiff was not entitled to the relief sought due to various legal grounds.

The primary legal issues before the court were whether the measure of success in the interlocutory proceedings could be accurately determined, and if so, what would constitute an appropriate order. The court also needed to consider whether a final determination of the motion was necessary, and if there were any questions of principle involved that would affect the appropriate costs order. The court was tasked with balancing the interests of both parties, taking into account the nature of the interlocutory proceedings and the potential implications of any costs order made.

In delivering the judgment, the court considered the relevant legal principles and authorities. It was determined that, in interlocutory proceedings, the measure of success could indeed be assessed and that an appropriate order should be made accordingly. The court held that a final determination of the motion was not necessary in this instance, as the primary focus was on the interlocutory nature of the proceedings. Furthermore, the court found that there were no questions of principle involved that would affect the appropriate costs order. The court concluded that an order for costs was appropriate, taking into account the overall outcome of the proceedings and the respective positions of the parties.

The court made an order that the plaintiff was entitled to costs of the proceeding to be paid by the defendant on an indemnity basis. This order reflected the court's assessment of the measure of success and the nature of the interlocutory proceedings, as well as the overall outcome of the case. The court's decision provided guidance on the appropriate approach to costs orders in similar cases involving interlocutory proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established