Natch v Stennson Pty Ltd [2022] FCA 641

Natch v Stennson Pty Ltd [2022] FCA 641

Although the applicants gave an acceptable explanation for the 22 day delay, leave to appeal was refused because they did not demonstrate any House v The King error in the primary judge's discretionary costs order. The primary judge was entitled to decline to undertake a merits assessment of untested evidence, to recognise the presumption in r 26.12(7), and to conclude that there was no good reason to depart from the usual consequence that the discontinuing applicants pay the first respondent's costs.

Jurisdiction
Australia
Judgment Date
02 June 2022
Procedural Posture
Application for Extension of Time and Leave to Appeal / Application for Extension of Time and Leave to Appeal From Interlocutory Costs Orders Made Following Discontinuance
Outcome
The application for extension of time and leave to appeal was dismissed with costs.
Legal Topics
['extension of Time' 'leave to Appeal' 'discontinuance' 'costs on Discontinuance' 'exercise of Discretion' 'protection Work Under the Building Act 1993 (vic)']
['practice and Procedure' 'costs' 'building and Construction'] ['extension of Time' 'leave to Appeal' 'discontinuance' 'costs on Discontinuance' 'exercise of Discretion' 'protection Work Under the Building Act 1993 (vic)']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Application for Extension of Time and Leave to Appeal From Interlocutory Costs Orders Made Following Discontinuance

Legal Issues

  1. 1 ['Whether an extension of time should be granted for a late application for leave to appeal from interlocutory costs orders.' 'Whether leave to appeal should be granted because the costs orders were attended by sufficient doubt and substantial injustice would result if uncorrected.' 'Whether the primary judge made an error of the kind described in House v The King in ordering costs as a condition of discontinuance.' "Whether the presumption in r 26.12(7) of the Federal Court Rules 2011 (Cth) that a discontinuing party pay the other party's costs should have been displaced."]

Ratio Decidendi

Although the applicants gave an acceptable explanation for the 22 day delay, leave to appeal was refused because they did not demonstrate any House v The King error in the primary judge's discretionary costs order. The primary judge was entitled to decline to undertake a merits assessment of untested evidence, to recognise the presumption in r 26.12(7), and to conclude that there was no good reason to depart from the usual consequence that the discontinuing applicants pay the first respondent's costs.

Court Disposition

The application for extension of time and leave to appeal was dismissed with costs.

Orders

  • ["The applicants' application for extension of time and leave to appeal be dismissed." "The applicants pay the first respondent's costs, to be agreed or assessed."]