Turner v O’Bryan-Turner [2019] NSWSC 258

Turner v O’Bryan-Turner [2019] NSWSC 258

The first to third defendants failed to comply with Rees J's orders to file and serve an amended notice of motion and supporting evidence, did so knowingly, and did not seek a timely variation despite contending that compliance was not possible. Their failure affected the plaintiffs and the Court's case management, and their attitude was fairly described as cavalier. It was therefore appropriate under r 42.10 of the Uniform Civil Procedure Rules 2005 (NSW) to order them to pay the plaintiffs' costs occasioned by the non-compliance on an indemnity basis.

Jurisdiction
Australia
Judgment Date
13 March 2019
Procedural Posture
Costs Application / Determination on the Papers of Costs Occasioned by Non Compliance With Orders and Directions
Outcome
The plaintiffs' application for costs occasioned by the first to third defendants' non-compliance was allowed, with costs ordered on an indemnity basis.
Legal Topics
['indemnity Costs' 'non Compliance With Court Orders' 'case Management' 'tutors and Representative Parties' 'conflict of Interest']
['costs' 'civil Procedure' 'equity'] ['indemnity Costs' 'non Compliance With Court Orders' 'case Management' 'tutors and Representative Parties' 'conflict of Interest']

Case Brief

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Procedural Posture

Costs Application / Determination on the Papers of Costs Occasioned by Non Compliance With Orders and Directions

Legal Issues

  1. 1 ["Whether the first to third defendants should pay the plaintiffs' costs occasioned by non-compliance with the orders and directions made by Rees J on 9 October 2018." 'Whether those costs should be paid on an indemnity basis.']

Ratio Decidendi

The first to third defendants failed to comply with Rees J's orders to file and serve an amended notice of motion and supporting evidence, did so knowingly, and did not seek a timely variation despite contending that compliance was not possible. Their failure affected the plaintiffs and the Court's case management, and their attitude was fairly described as cavalier. It was therefore appropriate under r 42.10 of the Uniform Civil Procedure Rules 2005 (NSW) to order them to pay the plaintiffs' costs occasioned by the non-compliance on an indemnity basis.

Court Disposition

The plaintiffs' application for costs occasioned by the first to third defendants' non-compliance was allowed, with costs ordered on an indemnity basis.

Orders

  • ["Pursuant to rule 42.10 of the Uniform Civil Procedure Rules 2005 (NSW) order the first to third defendants to pay the plaintiffs' costs occasioned by their failure to comply with the orders and directions made by Rees J on 9 October 2018 in relation to the filing of their amended notice of motion and evidence in...