Wilden v Jennings (no 3) [2022] NSWDC 343

Wilden v Jennings (no 3) [2022] NSWDC 343

The defendant remained liable for the plaintiff's costs because he lost the contested application to vary the freezing order, the plaintiff did not cause the need for the application or unduly extend it, and the application was separate from the appeal. The invoices provided sufficient evidence that the work was reasonable and necessary, and a gross lump sum order would avoid unnecessary costs assessment. The amount was reduced by 30% to better reflect party/party costs, producing $10,583.01. A stay was refused because the bankruptcy submission depended on an assumption inconsistent with findings made in the principal judgment.

Jurisdiction
Australia
Judgment Date
12 August 2022
Procedural Posture
Civil Costs Application Arising From the Defendant's Application to Vary a Freezing Order/penal Notice / On the Papers; Determination of Costs After Orders Made on 28 June 2022
Outcome
Costs order varied; defendant ordered to pay the plaintiff's costs of the application assessed on a gross lump sum basis, forthwith; stay refused.
Legal Topics
['freezing Order' 'penal Notice' 'variation Application' 'gross Lump Sum Costs Order' 'costs Follow the Event' 'stay of Costs Order']
['civil Procedure' 'costs'] ['freezing Order' 'penal Notice' 'variation Application' 'gross Lump Sum Costs Order' 'costs Follow the Event' 'stay of Costs Order']

Case Brief

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Procedural Posture

Civil Costs Application Arising From the Defendant's Application to Vary a Freezing Order/penal Notice / On the Papers; Determination of Costs After Orders Made on 28 June 2022

Legal Issues

  1. 1 ["Whether the previous order that the defendant pay the plaintiff's costs of the application should be reversed or varied." 'Whether costs of the application should await the outcome of the appeal.' 'Whether a gross lump sum costs order should be made under section 94(4) of the Civil Procedure Act 2005.' 'Whether enforcement of the costs order should be stayed because of the asserted risk of bankruptcy.']

Ratio Decidendi

The defendant remained liable for the plaintiff's costs because he lost the contested application to vary the freezing order, the plaintiff did not cause the need for the application or unduly extend it, and the application was separate from the appeal. The invoices provided sufficient evidence that the work was reasonable and necessary, and a gross lump sum order would avoid unnecessary costs assessment. The amount was reduced by 30% to better reflect party/party costs, producing $10,583.01. A stay was refused because the bankruptcy submission depended on an assumption inconsistent with findings made in the principal judgment.

Court Disposition

Costs order varied; defendant ordered to pay the plaintiff's costs of the application assessed on a gross lump sum basis, forthwith; stay refused.

Orders

  • ['The order in respect of costs made 28 June 2022 is varied from "the defendant is to pay the plaintiff\'s costs of this application" to "the defendant is to pay the plaintiff\'s costs of the application assessed on a gross lump sum basis in the amount of $10,583.01, forthwith".']