Fleming v Marshall [2012] NSWCA 144

Fleming v Marshall [2012] NSWCA 144

Given that respondents confirmed they would not seek to enforce the costs judgment until proceedings before Schmidt J were concluded, it was unnecessary to determine the stay application; notice of motion remitted to Common Law Division and each party to bear their own costs.

Jurisdiction
Australia
Judgment Date
07 May 2012
Procedural Posture
Notice of Motion (stay Enforcement of Costs Judgment) in Appellate Context / Remittal of Interlocutory Application; Appellate Procedural Order
Outcome
Notice of motion remitted to the Common Law Division; application for stay not determined; parties to bear own costs.
Legal Topics
['stay of Enforcement' 'costs' 'remittal of Motion' 'jurisdiction']
['civil Procedure'] ['stay of Enforcement' 'costs' 'remittal of Motion' 'jurisdiction']

Case Brief

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Procedural Posture

Notice of Motion (stay Enforcement of Costs Judgment) in Appellate Context / Remittal of Interlocutory Application; Appellate Procedural Order

Legal Issues

  1. 1 ['Whether the enforcement of a costs judgment should be stayed pending further proceedings in the Common Law Division' 'Which court or judge should determine the application for a stay' 'Apportionment of costs relating to the notice of motion']

Ratio Decidendi

Given that respondents confirmed they would not seek to enforce the costs judgment until proceedings before Schmidt J were concluded, it was unnecessary to determine the stay application; notice of motion remitted to Common Law Division and each party to bear their own costs.

Court Disposition

Notice of motion remitted to the Common Law Division; application for stay not determined; parties to bear own costs.

Orders

  • ['Pursuant to s 51(2) of the Supreme Court Act 1970 (NSW), notice of motion filed 9 March 2012 remitted to Common Law Division to be listed before Justice Schmidt on 25 May 2012 without prejudice as to whether she hears it concurrently with the amended notice of motion filed 13 March 2012.' 'Each party to pay their...