Wood v State of New South Wales (2) [2004] NSWCA 248

Wood v State of New South Wales (2) [2004] NSWCA 248

Because the primary judge's refusal of an extension of time was wrong, the foundation for her costs order fell away. Although the opponent was initially entitled to maintain its limitation defence until it had evidence addressing the relevant matters under s 60E(1) of the Limitation Act 1969, by February 2003 the claimant's evidence explaining delay had been filed for months and the opponent's refusal to agree to the extension application being heard with the substantive proceedings was unreasonable. The District Court motion costs should therefore be reserved for the trial judge. However, the present motion was required because the claimant failed to raise the costs issue during the...

Jurisdiction
Australia
Judgment Date
22 July 2004
Procedural Posture
Costs Application on Notice of Motion / Notice of Motion to Vary Court of Appeal Orders After Appeal Allowed
Outcome
Notice of motion allowed in part; prior costs exclusion rescinded; District Court motion costs reserved; claimant ordered to pay opponent's costs of the current motion.
Legal Topics
['variation of Orders Before Entry of Judgment' 'costs of Extension of Time Application' 'limitation Defence' 'calderbank Offer' 'belated Motion']
['costs' 'civil Procedure' 'limitation of Actions'] ['variation of Orders Before Entry of Judgment' 'costs of Extension of Time Application' 'limitation Defence' 'calderbank Offer' 'belated Motion']

Case Brief

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Procedural Posture

Costs Application on Notice of Motion / Notice of Motion to Vary Court of Appeal Orders After Appeal Allowed

Legal Issues

  1. 1 ['Whether Order (b) in the Court\'s judgment of 23 April 2004 should be varied by deleting the words "except as to costs".' "Whether the costs of the claimant's District Court notice of motion for an extension of time should be reserved for determination by the trial judge." 'Whether the claimant or opponent should pay the costs of the current notice of motion in the Court of Appeal.']

Ratio Decidendi

Because the primary judge's refusal of an extension of time was wrong, the foundation for her costs order fell away. Although the opponent was initially entitled to maintain its limitation defence until it had evidence addressing the relevant matters under s 60E(1) of the Limitation Act 1969, by February 2003 the claimant's evidence explaining delay had been filed for months and the opponent's refusal to agree to the extension application being heard with the substantive proceedings was unreasonable. The District Court motion costs should therefore be reserved for the trial judge. However, the present motion was required because the claimant failed to raise the costs issue during the...

Court Disposition

Notice of motion allowed in part; prior costs exclusion rescinded; District Court motion costs reserved; claimant ordered to pay opponent's costs of the current motion.

Orders

  • ["That Order (b) referred to in [47] of this Court's judgment of 23 April 2004 be rescinded and in lieu thereof it be ordered that the orders of Gamble ADCJ made on 4 July 2003 be set aside." "Order that the costs of the claimant's Notice of Motion filed on 6 February 2002 be reserved for determination by the trial...