McHugh & Anor v Eastern Star Gas Ltd & Ors (No 2) [2012] NSWCA 419

McHugh & Anor v Eastern Star Gas Ltd & Ors (No 2) [2012] NSWCA 419

Because the appeal reasons established that the costs orders against the applicants should not stand, the failure to set aside Order (vii) was an error within UCPR r 36.17 and that order should be set aside. The cross-application was not dealt with by oversight and, consistently with the Court's reasons, had to be dismissed with costs. The failure to order costs of the appeal against the Von Hartens was not an oversight because the litigation primarily related to Eastern Star Gas's costs rather than the costs of the motion.

Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Consequential Orders / Court of Appeal Application to Address Alleged Errors or Oversights in Orders After Judgment Delivered on 8 June 2012
Outcome
Additional orders made; cross-application dismissed; Order (vii) of R S Hulme J's orders set aside.
Legal Topics
['entry of Judgments and Orders' 'application to Set Aside or Vary Orders' 'ucpr R 36.17' 'cross Application for Costs' 'costs of Appeal']
['procedure' 'costs'] ['entry of Judgments and Orders' 'application to Set Aside or Vary Orders' 'ucpr R 36.17' 'cross Application for Costs' 'costs of Appeal']

Case Brief

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Procedural Posture

Consequential Orders / Court of Appeal Application to Address Alleged Errors or Oversights in Orders After Judgment Delivered on 8 June 2012

Legal Issues

  1. 1 ['Whether Order (vii) of the orders made by R S Hulme J on 3 June 2011 should be set aside under UCPR r 36.17 as an error or oversight.' "Whether Eastern Star Gas Ltd's cross-application for indemnity costs of the Mining Warden's proceedings should be dismissed." "Whether the failure to order the Von Hartens to pay the applicants' costs of the appeal was an error or oversight."]

Ratio Decidendi

Because the appeal reasons established that the costs orders against the applicants should not stand, the failure to set aside Order (vii) was an error within UCPR r 36.17 and that order should be set aside. The cross-application was not dealt with by oversight and, consistently with the Court's reasons, had to be dismissed with costs. The failure to order costs of the appeal against the Von Hartens was not an oversight because the litigation primarily related to Eastern Star Gas's costs rather than the costs of the motion.

Court Disposition

Additional orders made; cross-application dismissed; Order (vii) of R S Hulme J's orders set aside.

Orders

  • ['The applicants file a Notice of Appeal within 7 days of the making of these orders.' 'The cross-application is dismissed.' 'Eastern Star Gas Ltd is to pay the costs of the cross-respondents of the cross-application.' 'Order (vii) of the orders made by R S Hulme J on 3 June 2011 be set aside.']