Stephen Dereke Harper & ors v Drew Scott James & ors [2011] NSWSC 400

Stephen Dereke Harper & ors v Drew Scott James & ors [2011] NSWSC 400

Leave to discontinue proceedings is granted where the non-consenting party (the fourth defendant) has not actively participated, and the court is satisfied discontinuance is appropriate. Costs will lie where they fall, in accordance with the agreement of the active parties and orders made notwithstanding the default rule in r 42.19.

Jurisdiction
Australia
Judgment Date
24 March 2011
Procedural Posture
Equity Proceedings / Application for Leave to Discontinue Proceedings; Procedural Ruling
Outcome
Leave to discontinue proceedings granted; orders as to costs made by consent.
Legal Topics
['notice of Discontinuance' 'consent of Parties' 'leave to Discontinue' 'costs']
['practice and Procedure'] ['notice of Discontinuance' 'consent of Parties' 'leave to Discontinue' 'costs']

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Procedural Posture

Equity Proceedings / Application for Leave to Discontinue Proceedings; Procedural Ruling

Legal Issues

  1. 1 ['Whether leave to discontinue proceedings should be granted where not all parties have consented' 'Whether costs orders should follow discontinuance in the absence of contrary agreement']

Ratio Decidendi

Leave to discontinue proceedings is granted where the non-consenting party (the fourth defendant) has not actively participated, and the court is satisfied discontinuance is appropriate. Costs will lie where they fall, in accordance with the agreement of the active parties and orders made notwithstanding the default rule in r 42.19.

Court Disposition

Leave to discontinue proceedings granted; orders as to costs made by consent.

Orders

  • ['Leave granted to plaintiffs to discontinue proceedings against the first defendant; each party to bear its own costs.' 'Leave granted to first defendant/cross-claimant to discontinue the cross-claim; each party to the cross claim to bear its own costs.' 'Leave granted to plaintiffs to discontinue proceedings...