Alexander v Burne (No 4) [2016] NSWSC 1479

Alexander v Burne (No 4) [2016] NSWSC 1479

The Court was not persuaded that the interests of justice required the Court of Appeal costs order to be payable forthwith because the separate question was only one step in the plaintiffs' case, the consequences of the Court of Appeal's determination remained to be resolved, there was no evidence that the plaintiffs had paid their solicitors, would suffer hardship, or lacked capacity to fund the proceedings, the application was delayed without explanation, and the plaintiffs had themselves delayed service of evidence. The Court also held that the requested McGrath Nicol disclosure did not amount to exceptional circumstances under Practice Note SC Eq 11 because the documents had no...

Jurisdiction
Australia
Judgment Date
19 October 2016
Procedural Posture
Equity Proceedings; Notice of Motion / Interlocutory Application After Court of Appeal Remitter
Outcome
Plaintiffs' notice of motion of 23 June 2016 dismissed with costs.
Legal Topics
['costs of Separate Question Payable Forthwith' 'disclosure Before Service of Evidence' 'practice Note SC Eq 11 Exceptional Circumstances']
['practice and Procedure' 'costs' 'disclosure'] ['costs of Separate Question Payable Forthwith' 'disclosure Before Service of Evidence' 'practice Note SC Eq 11 Exceptional Circumstances']

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Procedural Posture

Equity Proceedings; Notice of Motion / Interlocutory Application After Court of Appeal Remitter

Legal Issues

  1. 1 ["Whether costs ordered in the plaintiffs' favour by the Court of Appeal on 2 December 2015 should be payable forthwith." "Whether disclosure of reports and advices received by the defendants from McGrath Nicol in 2012 in respect of the solvency of the BDO Business should be ordered before service of the plaintiffs' evidence notwithstanding Practice Note SC Eq 11."]

Ratio Decidendi

The Court was not persuaded that the interests of justice required the Court of Appeal costs order to be payable forthwith because the separate question was only one step in the plaintiffs' case, the consequences of the Court of Appeal's determination remained to be resolved, there was no evidence that the plaintiffs had paid their solicitors, would suffer hardship, or lacked capacity to fund the proceedings, the application was delayed without explanation, and the plaintiffs had themselves delayed service of evidence. The Court also held that the requested McGrath Nicol disclosure did not amount to exceptional circumstances under Practice Note SC Eq 11 because the documents had no...

Court Disposition

Plaintiffs' notice of motion of 23 June 2016 dismissed with costs.

Orders

  • ["The plaintiffs' notice of motion of 23 June 2016 is dismissed with costs."]