Sedrak v Starr [2010] NSWCA 228

Sedrak v Starr [2010] NSWCA 228

Although the appellant failed to comply with the rules and the undertaking concerning preparation, service and filing of the Black and Blue Books, the deficiencies had been substantially rectified, so dismissal of the notice of motion would accord with the dictates of justice. However, the appellant's unexplained failures caused unreasonable delay and expense and required the respondent to bring the motion, justifying an indemnity costs order.

Jurisdiction
Australia
Judgment Date
27 August 2010
Procedural Posture
Civil Appeal Interlocutory Notice of Motion / Ex Tempore Ruling on Notice of Motion Before Appeal Hearing
Outcome
Notice of motion dismissed; appellant ordered to pay the respondent's costs of and relating to the notice of motion on an indemnity basis.
Legal Topics
['case Management' 'failure to Prosecute' 'preparation, Filing and Service of Appeal Books' 'stay of Proceedings' 'indemnity Costs' 'overriding Purpose']
['procedure' 'costs'] ['case Management' 'failure to Prosecute' 'preparation, Filing and Service of Appeal Books' 'stay of Proceedings' 'indemnity Costs' 'overriding Purpose']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Appeal Interlocutory Notice of Motion / Ex Tempore Ruling on Notice of Motion Before Appeal Hearing

Legal Issues

  1. 1 ['Whether the appeal should be dismissed for failure to prosecute under Uniform Civil Procedure Rules 2005 12.7(1) and the stay dissolved.' 'Whether the appellant failed to comply with rules and an undertaking concerning preparation, filing and service of the Black and Blue Books.' 'Whether the respondent should receive costs of the notice of motion on an indemnity basis.']

Ratio Decidendi

Although the appellant failed to comply with the rules and the undertaking concerning preparation, service and filing of the Black and Blue Books, the deficiencies had been substantially rectified, so dismissal of the notice of motion would accord with the dictates of justice. However, the appellant's unexplained failures caused unreasonable delay and expense and required the respondent to bring the motion, justifying an indemnity costs order.

Court Disposition

Notice of motion dismissed; appellant ordered to pay the respondent's costs of and relating to the notice of motion on an indemnity basis.

Orders

  • ['Notice of motion filed on 16 August 2010 dismissed.' "Appellant to pay the respondent's costs of and relating to the notice of motion on an indemnity basis."]