Walsh v State of New South Wales (No 2) [2020] NSWSC 1729

Walsh v State of New South Wales (No 2) [2020] NSWSC 1729

Although the plaintiff was successful on all Motions and the appeal, there was insufficient misconduct or 'relevant delinquency' by the defendant to warrant indemnity costs for the Motions or appeal; however, equitable considerations, the disparity of means, and the distinct nature of the interlocutory applications justified orders that the plaintiff's ordinary costs of the Motions and the appeal, as previously awarded, be payable forthwith, and that the costs of the costs application itself be paid forthwith on an indemnity basis.

Jurisdiction
Australia
Judgment Date
03 December 2020
Procedural Posture
Costs Application in Ongoing Civil Proceedings / Interlocutory/costs Determination Post Appeal Judgment
Outcome
Application for indemnity costs in main dismissed; application for costs to be payable forthwith granted; indemnity costs granted for costs application only.
Legal Topics
['costs' 'interlocutory Proceedings' 'indemnity Costs' 'jurisdiction of Superior Court']
['civil Procedure'] ['costs' 'interlocutory Proceedings' 'indemnity Costs' 'jurisdiction of Superior Court']

Case Brief

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Procedural Posture

Costs Application in Ongoing Civil Proceedings / Interlocutory/costs Determination Post Appeal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to indemnity costs for interlocutory applications and the appeal' 'Whether such costs orders are to be paid forthwith' 'Whether the Supreme Court retains jurisdiction to vary/amend interlocutory costs orders after their entry']

Ratio Decidendi

Although the plaintiff was successful on all Motions and the appeal, there was insufficient misconduct or 'relevant delinquency' by the defendant to warrant indemnity costs for the Motions or appeal; however, equitable considerations, the disparity of means, and the distinct nature of the interlocutory applications justified orders that the plaintiff's ordinary costs of the Motions and the appeal, as previously awarded, be payable forthwith, and that the costs of the costs application itself be paid forthwith on an indemnity basis.

Court Disposition

Application for indemnity costs in main dismissed; application for costs to be payable forthwith granted; indemnity costs granted for costs application only.

Orders

  • ["The defendant shall pay the plaintiff's costs of the Motions, ordered to be paid by Harrison AsJ on 4 October 2018, and the costs of the appeal ordered to be paid by Rothman J on 26 June 2020, on the ordinary basis." 'The costs referred to herein shall be paid forthwith;' "The defendant shall pay the plaintiff's...