Holshandon Pty Limited v Eakin; Barlow-Smith v Eakin [2014] NSWSC 1123

Holshandon Pty Limited v Eakin; Barlow-Smith v Eakin [2014] NSWSC 1123

The dispensations sought from r 23.5 of the UCPR were not appropriately characterised as an indulgence because the orders were the only way the defendants could progress the matter and have their psychiatric expert assess the plaintiffs for the hearing. Although it was reasonable for the plaintiffs to resist examination by Dr Champion, after the defendants proposed examination by Dr Skinner on 24 July 2014 the plaintiffs' continued unsuccessful resistance meant they should bear the costs of the hearing of the motion on 28 July 2014, while earlier costs should be costs in the cause.

Jurisdiction
Australia
Judgment Date
18 August 2014
Procedural Posture
Civil Proceedings Concerning Costs of a Notice of Motion for Medical Examinations and Dispensation From R 23.5 of the Uniform Civil Procedure Rules NSW (2005) / Costs Determination After Orders Made on the Defendants' Notice of Motion
Outcome
Costs of the motion were ordered to be costs in the cause up to, but not including, 28 July 2014; the relevant plaintiffs were ordered to pay the defendants' costs of the hearing of the notice of motion on 28 July 2014; no order was made as to the costs of 18 August 2014; both proceedings were stood over for...
Legal Topics
['medical Examinations of Parties' 'dispensation From Uniform Civil Procedure Rules NSW (2005), R 23.5' 'costs of Notice of Motion' 'indulgence' 'costs Follow the Event']
['civil Procedure' 'costs'] ['medical Examinations of Parties' 'dispensation From Uniform Civil Procedure Rules NSW (2005), R 23.5' 'costs of Notice of Motion' 'indulgence' 'costs Follow the Event']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Costs of a Notice of Motion for Medical Examinations and Dispensation From R 23.5 of the Uniform Civil Procedure Rules NSW (2005) / Costs Determination After Orders Made on the Defendants' Notice of Motion

Legal Issues

  1. 1 ["Whether the defendants were seeking an indulgence when seeking orders that the plaintiffs be medically examined and orders dispensing with the requirement in r 23.5 of the Uniform Civil Procedure Rules NSW (2005) that a medical expert of the plaintiffs' choice be present for such examinations." "Whether the plaintiffs should pay the defendants' costs of the notice of motion or whether the costs should be costs in the cause."]

Ratio Decidendi

The dispensations sought from r 23.5 of the UCPR were not appropriately characterised as an indulgence because the orders were the only way the defendants could progress the matter and have their psychiatric expert assess the plaintiffs for the hearing. Although it was reasonable for the plaintiffs to resist examination by Dr Champion, after the defendants proposed examination by Dr Skinner on 24 July 2014 the plaintiffs' continued unsuccessful resistance meant they should bear the costs of the hearing of the motion on 28 July 2014, while earlier costs should be costs in the cause.

Court Disposition

Costs of the motion were ordered to be costs in the cause up to, but not including, 28 July 2014; the relevant plaintiffs were ordered to pay the defendants' costs of the hearing of the notice of motion on 28 July 2014; no order was made as to the costs of 18 August 2014; both proceedings were stood over for...

Orders

  • ['Proceedings 09/297481: Costs of the motion be costs of the cause up to, but not including, the date of the hearing being 28 July 2014.' "Proceedings 09/297481: Second, third and fourth plaintiffs pay the defendants' costs of 28 July 2014, being the hearing of the notice of motion." 'Proceedings 09/297481: No order...