White v Attwells [2021] NSWSC 1304

White v Attwells [2021] NSWSC 1304

Although Mr White had failed to comply with Adamson J's order in a timely fashion, the filing and prosecution of the motion seeking significant relief, including striking out the Defence to Cross-Claim, was an unnecessary, combative and paper-laden course where the applicant could have used the existing liberty to restore the matter for case management directions. In all the circumstances, justice between the parties required that each party bear its own costs of the Notice of Motion and Amended Notice of Motion.

Jurisdiction
Australia
Judgment Date
12 October 2021
Procedural Posture
Civil Procedure Costs Application in Common Law Proceedings / Notice of Motion Filed on 5 May 2021 and Amended Notice of Motion Filed on 29 September 2021 Concerning Costs and Case Management Directions
Outcome
Each party to bear its own costs; Amended Notice of Motion otherwise dismissed; Fees Proceedings stood over for directions.
Legal Topics
['costs of Notice of Motion' 'indemnity Costs' 'costs Payable Forthwith' 'non Compliance With Court Orders' 'liberty to Apply' 'case Management']
['civil Procedure' 'costs'] ['costs of Notice of Motion' 'indemnity Costs' 'costs Payable Forthwith' 'non Compliance With Court Orders' 'liberty to Apply' 'case Management']

Case Brief

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Procedural Posture

Civil Procedure Costs Application in Common Law Proceedings / Notice of Motion Filed on 5 May 2021 and Amended Notice of Motion Filed on 29 September 2021 Concerning Costs and Case Management Directions

Legal Issues

  1. 1 ['Whether costs of the Notice of Motion and Amended Notice of Motion should be ordered against Mr White on an indemnity basis, to be assessed and paid forthwith.' 'Whether the motion was an unnecessary and procedurally disproportionate course where liberty to restore the matter before Adamson J for case management directions was available.' "What order as to costs would do justice between the parties in light of Mr White's non-compliance and the unnecessary use of a paper-heavy motion."]

Ratio Decidendi

Although Mr White had failed to comply with Adamson J's order in a timely fashion, the filing and prosecution of the motion seeking significant relief, including striking out the Defence to Cross-Claim, was an unnecessary, combative and paper-laden course where the applicant could have used the existing liberty to restore the matter for case management directions. In all the circumstances, justice between the parties required that each party bear its own costs of the Notice of Motion and Amended Notice of Motion.

Court Disposition

Each party to bear its own costs; Amended Notice of Motion otherwise dismissed; Fees Proceedings stood over for directions.

Orders

  • ['Each party is to bear its own costs of the Notice of Motion filed on 5 May 2021 and the Amended Notice of Motion filed on 29 September 2021.' 'The Amended Notice of Motion is otherwise dismissed.' 'The "Fees Proceedings" are stood over for directions before the Registrar on 18 October 2021 at 9am for case...