Davis v Certain Lloyd’s Underwriters [2022] NSWSC 131

Davis v Certain Lloyd’s Underwriters [2022] NSWSC 131

The Davis Descendants failed to establish sound positive ground for departure from the default rule that costs follow discontinuance. UCPR r 42.19 provides that where proceedings are discontinued, plaintiffs must pay defendants' costs unless the Court orders otherwise. In the circumstances, costs were not wasted solely by the Underwriters' actions, and there was no unreasonable conduct on their part. Settlement of related proceedings did not constitute practical success in these proceedings. The appropriate and just order is that Davis Descendants pay the Underwriters' costs, including those of the Interlocutory Process.

Jurisdiction
Australia
Judgment Date
17 February 2022
Procedural Posture
Corporations List, Equity / Costs Determination Following Discontinuance by Leave
Outcome
Leave granted to discontinue; costs ordered against Plaintiffs.
Legal Topics
['discontinuance' 'costs' 'corporations Proceedings' 'trustee Liability']
['equity' 'corporations Law'] ['discontinuance' 'costs' 'corporations Proceedings' 'trustee Liability']

Case Brief

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Procedural Posture

Corporations List, Equity / Costs Determination Following Discontinuance by Leave

Legal Issues

  1. 1 ['Appropriate costs order where proceedings are discontinued by leave' 'Application of UCPR r 42.19 default provision for costs' 'Whether circumstances justify departure from ordinary rule for costs']

Ratio Decidendi

The Davis Descendants failed to establish sound positive ground for departure from the default rule that costs follow discontinuance. UCPR r 42.19 provides that where proceedings are discontinued, plaintiffs must pay defendants' costs unless the Court orders otherwise. In the circumstances, costs were not wasted solely by the Underwriters' actions, and there was no unreasonable conduct on their part. Settlement of related proceedings did not constitute practical success in these proceedings. The appropriate and just order is that Davis Descendants pay the Underwriters' costs, including those of the Interlocutory Process.

Court Disposition

Leave granted to discontinue; costs ordered against Plaintiffs.

Orders

  • ['Leave granted to Plaintiffs to discontinue the proceedings.' "Plaintiffs to pay the First Defendant's costs of the proceedings as agreed or as assessed, including costs of and incidental to their Interlocutory Process dated 28 January 2022."]