Maxwell-Smith v Hall [No 2] [2013] NSWCA 3

Maxwell-Smith v Hall [No 2] [2013] NSWCA 3

Leave to appeal was granted and orders striking out part of the pleading were set aside because the original decision was made under a misapprehension about the particulars supplied by the applicants, clarified during the appellate process; costs order was not made against applicants because, although they did not initially raise the successful ground, both parties contributed to the confusion and applicants were self-represented.

Jurisdiction
Australia
Judgment Date
05 February 2013
Procedural Posture
Application for Leave to Appeal / Post Hearing Orders on Appeal/leave Application
Outcome
Leave to appeal granted; appeal allowed by consent; orders 1-4 set aside; no order as to costs as between applicants and third respondent.
Legal Topics
['costs' 'recusal' 'abuse of Process' 'setting Aside Orders']
['civil Procedure'] ['costs' 'recusal' 'abuse of Process' 'setting Aside Orders']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Post Hearing Orders on Appeal/leave Application

Legal Issues

  1. 1 ['Whether leave to appeal should be granted following orders striking out parts of a statement of claim' 'Whether costs should follow the event where appeal is allowed on a new ground and not on grounds raised by the appellant']

Ratio Decidendi

Leave to appeal was granted and orders striking out part of the pleading were set aside because the original decision was made under a misapprehension about the particulars supplied by the applicants, clarified during the appellate process; costs order was not made against applicants because, although they did not initially raise the successful ground, both parties contributed to the confusion and applicants were self-represented.

Court Disposition

Leave to appeal granted; appeal allowed by consent; orders 1-4 set aside; no order as to costs as between applicants and third respondent.

Orders

  • ['Grant leave to appeal in respect of orders 1-4.' 'By consent, allow the appeal and set aside orders 1-4.' 'No order as to costs as between the applicants and the third respondent.']