Qasim v Mitchell & Ors. [2022] NSWSC 1543

Qasim v Mitchell & Ors. [2022] NSWSC 1543

Because the proceedings were brought in Fred Klein's name without his consent or authority and were not ratified by him, he was entitled as of right to have the orders made against him discharged or varied and to be removed as a party. Shaheen Qasim was ordered to pay his costs, with indemnity costs from 15 June 2022, because an offer to extricate him from the proceedings had not been accepted and he should never have been added as a party.

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Civil Procedure Summons and Notice of Motion / Application by the Second Plaintiff for Removal as a Party, Variation of Costs Orders and Indemnity Costs
Outcome
Second plaintiff's motion granted; prior costs orders varied so they are borne by the first plaintiff, second plaintiff removed from the proceedings, and first plaintiff ordered to pay the second plaintiff's costs on an indemnity basis from 15 June 2022.
Legal Topics
['proceedings Commenced Without Authority' 'removal of Parties' 'setting Aside or Varying Orders' 'indemnity Costs']
['civil Procedure' 'costs'] ['proceedings Commenced Without Authority' 'removal of Parties' 'setting Aside or Varying Orders' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil Procedure Summons and Notice of Motion / Application by the Second Plaintiff for Removal as a Party, Variation of Costs Orders and Indemnity Costs

Legal Issues

  1. 1 ["Whether the proceedings were brought in Fred Klein's name without his consent or authority." 'Whether Fred Klein should be removed as second plaintiff and orders made against him discharged or varied.' "Whether Shaheen Qasim should pay Fred Klein's costs, including on an indemnity basis from 15 June 2022."]

Ratio Decidendi

Because the proceedings were brought in Fred Klein's name without his consent or authority and were not ratified by him, he was entitled as of right to have the orders made against him discharged or varied and to be removed as a party. Shaheen Qasim was ordered to pay his costs, with indemnity costs from 15 June 2022, because an offer to extricate him from the proceedings had not been accepted and he should never have been added as a party.

Court Disposition

Second plaintiff's motion granted; prior costs orders varied so they are borne by the first plaintiff, second plaintiff removed from the proceedings, and first plaintiff ordered to pay the second plaintiff's costs on an indemnity basis from 15 June 2022.

Orders

  • ['Order that all references in the orders made on 30 May 2022 and 13 September 2022 to plaintiffs are to be read "first plaintiff", with the consequence that all orders for costs made by the Court on 30 May 2022 and 13 September 2022 are to be borne by the first plaintiff Shaheen Qasim.' 'Upon entry of order 1,...