Krich v Hadid [2019] NSWSC 1346

Krich v Hadid [2019] NSWSC 1346

Although the first defendant's defaults in 2019 were sustained and egregious, the plaintiff was not entitled to the costs of the motion because adequate notice of the strike out application had not been given. Reserving costs or making the costs costs in the proceedings was inappropriate, including because the merits of the proceedings as a whole did not necessarily correspond to the merits of the notice of motion. The just order was therefore no order as to the costs of the notice of motion to date, with each party bearing his own costs.

Jurisdiction
Australia
Judgment Date
03 October 2019
Procedural Posture
Civil Procedure Notice of Motion in Common Law Proceedings / Interlocutory Hearing Before Duty Judge Concerning a Notice of Motion to Strike Out the First Defendant's Defence and Enter Judgment; Motion Resolved Except as to Costs
Outcome
Directions made by consent in substance; plaintiff's notice of motion stood over; no order as to costs to date, with each party to bear his own costs.
Legal Topics
['non Compliance With Directions' 'strike Out Application' 'adequate Notice Before Interlocutory Motion' 'costs of Notice of Motion' 'service of Evidence' 'mediation Consideration']
['civil Procedure' 'costs'] ['non Compliance With Directions' 'strike Out Application' 'adequate Notice Before Interlocutory Motion' 'costs of Notice of Motion' 'service of Evidence' 'mediation Consideration']

Case Brief

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Procedural Posture

Civil Procedure Notice of Motion in Common Law Proceedings / Interlocutory Hearing Before Duty Judge Concerning a Notice of Motion to Strike Out the First Defendant's Defence and Enter Judgment; Motion Resolved Except as to Costs

Legal Issues

  1. 1 ['Whether the first defendant/cross-claimant should be directed to serve all evidence by a specified date and be precluded from relying on unserved evidence without leave.' "Whether the plaintiff should recover the costs of the notice of motion filed on 12 September 2019 in light of the first defendant's repeated non-compliance with directions." 'Whether no order as to costs, reserved costs, or costs in the proceedings was the appropriate costs disposition where the plaintiff had not given adequate notice of the strike out application.']

Ratio Decidendi

Although the first defendant's defaults in 2019 were sustained and egregious, the plaintiff was not entitled to the costs of the motion because adequate notice of the strike out application had not been given. Reserving costs or making the costs costs in the proceedings was inappropriate, including because the merits of the proceedings as a whole did not necessarily correspond to the merits of the notice of motion. The just order was therefore no order as to the costs of the notice of motion to date, with each party bearing his own costs.

Court Disposition

Directions made by consent in substance; plaintiff's notice of motion stood over; no order as to costs to date, with each party to bear his own costs.

Orders

  • ['Direct the first defendant/cross-claimant to serve all evidence on which he proposes to rely in defence of the claim and in support of the cross-claim on or before 31 October 2019.' 'Order that the first defendant/cross-claimant not be permitted to rely on any evidence which has not been served in accordance with...