KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (No 3) [2020] NSWCA 158

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (No 3) [2020] NSWCA 158

The application was dismissed because, although Matthew Bowden was the moving party and most litigation funds came from loans made by his parents, the parents did not conduct, control or direct the litigation, had no financial or other interest equal to or greater than Matthew Bowden's interest, were not to receive anything from the litigation beyond earlier repayment of the loan, and acted out of parental support. The litigation by Matthew Bowden was not shown to be unreasonable or improper, he was not insolvent or a person of straw, and the circumstances did not justify exercising the broad discretion under s 98 to make a third party costs order.

Jurisdiction
Australia
Judgment Date
28 July 2020
Procedural Posture
Application for Third Party Costs Order Arising From Defamation Proceedings / Court of Appeal Notice of Motion After Successful Appeal
Outcome
Application dismissed; applicants ordered to pay the respondents' costs of the motion.
Legal Topics
['third Party Costs Order' 'section 98 Civil Procedure Act 2005 (nsw)' 'non Party Costs' 'family Funding of Litigation' 'discretion as to Costs']
['defamation' 'costs' 'civil Procedure'] ['third Party Costs Order' 'section 98 Civil Procedure Act 2005 (nsw)' 'non Party Costs' 'family Funding of Litigation' 'discretion as to Costs']

Case Brief

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Procedural Posture

Application for Third Party Costs Order Arising From Defamation Proceedings / Court of Appeal Notice of Motion After Successful Appeal

Legal Issues

  1. 1 ['Whether the Court should make a third party costs order under s 98 of the Civil Procedure Act 2005 (NSW) against Annette Bowden and Thomas Robinson Bowden, who were not parties to the trial or appeal.' 'Whether lending funds to a son to conduct defamation litigation, together with a parental desire that he succeed, was sufficient to justify a third party costs order.' 'Whether the parents had an interest in, controlled, directed or actively participated in the litigation.' 'Whether Matthew Bowden was insolvent or a person of straw, and whether the conduct of the litigation was unreasonable or improper.']

Ratio Decidendi

The application was dismissed because, although Matthew Bowden was the moving party and most litigation funds came from loans made by his parents, the parents did not conduct, control or direct the litigation, had no financial or other interest equal to or greater than Matthew Bowden's interest, were not to receive anything from the litigation beyond earlier repayment of the loan, and acted out of parental support. The litigation by Matthew Bowden was not shown to be unreasonable or improper, he was not insolvent or a person of straw, and the circumstances did not justify exercising the broad discretion under s 98 to make a third party costs order.

Court Disposition

Application dismissed; applicants ordered to pay the respondents' costs of the motion.

Orders

  • ['Application dismissed.' 'Applicants to pay the costs of the respondents to the motion.']