Scope Data Systems Pty Ltd v Aitken (No. 3) [2010] NSWDC 66

Scope Data Systems Pty Ltd v Aitken (No. 3) [2010] NSWDC 66

Indemnity costs were warranted because the plaintiffs commenced the summons well outside the 28-day appeal period and after the bankruptcy notice, did not put the appeal into proper form until more than one year after the costs assessment, provided only a late and inadequate explanation for the delay, and advanced proceedings that were unlikely to succeed. The chronology supported an inference that the proceedings were commenced for an ulterior purpose to forestall or delay bankruptcy proceedings, justifying variation of the earlier costs order to indemnity costs.

Jurisdiction
Australia
Judgment Date
28 April 2010
Procedural Posture
Civil Costs Proceedings / Judgment on Defendants' Application for Indemnity Costs After Refusal of Application to Extend Time
Outcome
Order varied so that the plaintiffs pay the defendants' costs on an indemnity basis.
Legal Topics
['indemnity Costs' 'costs Assessment Appeals' 'extension of Time' 'delay' 'ulterior Purpose' 'bankruptcy Proceedings']
['costs' 'civil Procedure'] ['indemnity Costs' 'costs Assessment Appeals' 'extension of Time' 'delay' 'ulterior Purpose' 'bankruptcy Proceedings']

Case Brief

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Procedural Posture

Civil Costs Proceedings / Judgment on Defendants' Application for Indemnity Costs After Refusal of Application to Extend Time

Legal Issues

  1. 1 ["Whether order 4 of the orders of 25 March 2010 should be varied so that the plaintiffs pay the defendants' costs on an indemnity basis." "Whether the plaintiffs' delayed summons and appeal were commenced or carried on for an ulterior purpose, namely to forestall or delay bankruptcy proceedings." "Whether the plaintiffs' explanation for substantial delay and the merits of the appeal justified departure from the usual party/party costs order."]

Ratio Decidendi

Indemnity costs were warranted because the plaintiffs commenced the summons well outside the 28-day appeal period and after the bankruptcy notice, did not put the appeal into proper form until more than one year after the costs assessment, provided only a late and inadequate explanation for the delay, and advanced proceedings that were unlikely to succeed. The chronology supported an inference that the proceedings were commenced for an ulterior purpose to forestall or delay bankruptcy proceedings, justifying variation of the earlier costs order to indemnity costs.

Court Disposition

Order varied so that the plaintiffs pay the defendants' costs on an indemnity basis.

Orders

  • ["Vary order 4 of my orders of 25 March 2010 to provide that the plaintiffs pay the defendants' costs on an indemnity basis."]