Woodhouse v Fitzgerald (No 2) [2021] NSWCA 132

Woodhouse v Fitzgerald (No 2) [2021] NSWCA 132

The respondents’ failure to seek retention of the indemnity costs order at appeal was not a 'slip' on the Court’s part and the slip rule was not engaged. However, as the motion was brought within 14 days under UCPR r 36.16(3A), the Court had power to vary the order to reinstate indemnity costs as a matter of justice since the issue was not contentious and had not been challenged by the appellant.

Jurisdiction
Australia
Judgment Date
01 July 2021
Procedural Posture
Appeal / Post Judgment Motion to Vary Order
Outcome
Order varied
Legal Topics
['costs' 'variation of Judgment or Order' 'slip Rule' 'post Judgment Application']
['civil Procedure'] ['costs' 'variation of Judgment or Order' 'slip Rule' 'post Judgment Application']

Case Brief

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Procedural Posture

Appeal / Post Judgment Motion to Vary Order

Legal Issues

  1. 1 ['Whether the Court can vary an order as to costs after entry of judgment on post-judgment motion' "Whether the slip rule (UCPR r 36.17) is engaged by legal representatives' error" 'Whether an order may be varied under UCPR r 36.16(3A) within the relevant period']

Ratio Decidendi

The respondents’ failure to seek retention of the indemnity costs order at appeal was not a 'slip' on the Court’s part and the slip rule was not engaged. However, as the motion was brought within 14 days under UCPR r 36.16(3A), the Court had power to vary the order to reinstate indemnity costs as a matter of justice since the issue was not contentious and had not been challenged by the appellant.

Court Disposition

Order varied

Orders

  • ["Vary order (2)(b) made on 9 April 2021 so that it provides: (b) order that the plaintiff pay the defendants' costs of the trial to be assessed on the ordinary basis up to 21 November 2019 and on the indemnity basis on and from that date."]