Mirembe Pty Ltd v Craig Dangar & ors [2010] NSWSC 637

Mirembe Pty Ltd v Craig Dangar & ors [2010] NSWSC 637

The costs order against the fifth defendant was set aside because it was plainly arguable that a different costs order should have been made, at least limiting liability to the available assets of the company in administration, and because despite the fifth defendant's troubling failure to respond to correspondence, he could be accepted as having proceeded on the belief that no personal relief or costs order was sought against him.

Jurisdiction
Australia
Judgment Date
04 May 2010
Procedural Posture
Notice of Motion to Set Aside Costs Order / Consequential Orders; Ex Tempore Judgment
Outcome
The costs order made against the fifth defendant was set aside, but the fifth defendant was ordered to pay the plaintiff's costs of the motion.
Legal Topics
['setting Aside Orders' 'costs Order Against Administrator Personally' 'non Appearance at Undefended Hearing']
['civil Procedure' 'costs'] ['setting Aside Orders' 'costs Order Against Administrator Personally' 'non Appearance at Undefended Hearing']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Costs Order / Consequential Orders; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the costs order made on 15 October 2009 against the fifth defendant in his absence should be set aside under Uniform Civil Procedure Rules r 36.16(2)(b).' "Whether there was a sufficient explanation for the fifth defendant's absence when the order was made." 'Whether the fifth defendant had an arguable basis that a different costs order was appropriate.']

Ratio Decidendi

The costs order against the fifth defendant was set aside because it was plainly arguable that a different costs order should have been made, at least limiting liability to the available assets of the company in administration, and because despite the fifth defendant's troubling failure to respond to correspondence, he could be accepted as having proceeded on the belief that no personal relief or costs order was sought against him.

Court Disposition

The costs order made against the fifth defendant was set aside, but the fifth defendant was ordered to pay the plaintiff's costs of the motion.

Orders

  • ['Order (3) made on 15 October 2009, insofar as it concerns the fifth defendant only, be set aside.' "Applicant/fifth defendant pay the respondent/plaintiff's costs of the motion filed on 22 February 2010." 'The plaintiff lodge with my associate and serve on the fifth defendant by 18 May 2010 a document setting out...