Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr; Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Tim Barr Pty Ltd & Ors [No 2] [2005] NSWCA 420

Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr; Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Tim Barr Pty Ltd & Ors [No 2] [2005] NSWCA 420

Narui's variation application was refused because Narui had not been denied an opportunity to be heard on the form of the stay order, had made no submissions on that form despite having the opportunity, and the feared contingencies concerning the indemnity were unestablished and premature. TBPL and Mr Barr's costs variation application was refused because Narui was substantially successful in the appeal and there was no reason to alter the costs order already made after due deliberation.

Jurisdiction
Australia
Judgment Date
02 December 2005
Procedural Posture
Court of Appeal Notices of Motion to Vary Orders Made After an Appeal / On Written Submissions; Determination in Chambers
Outcome
The application by Project 28 Pty Ltd and the application by Tim Barr Pty Ltd and Mr Barr are both dismissed with costs.
Legal Topics
['variation of Unentered Orders' 'stay of Proceedings' 'costs Orders' 'indemnity for Costs' 'litigation Funding']
['civil Procedure' 'appellate Procedure' 'costs'] ['variation of Unentered Orders' 'stay of Proceedings' 'costs Orders' 'indemnity for Costs' 'litigation Funding']

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Procedural Posture

Court of Appeal Notices of Motion to Vary Orders Made After an Appeal / On Written Submissions; Determination in Chambers

Legal Issues

  1. 1 ['Whether order (d) should be varied so that the Lease Proceedings were stayed until Austcorp provided Narui with an indemnity against any costs that TBPL and Mr Barr might be ordered to pay Narui.' 'Whether the costs order made on 25 July 2005 should be varied so that TBPL and Mr Barr paid only 50% of specified costs.']

Ratio Decidendi

Narui's variation application was refused because Narui had not been denied an opportunity to be heard on the form of the stay order, had made no submissions on that form despite having the opportunity, and the feared contingencies concerning the indemnity were unestablished and premature. TBPL and Mr Barr's costs variation application was refused because Narui was substantially successful in the appeal and there was no reason to alter the costs order already made after due deliberation.

Court Disposition

The application by Project 28 Pty Ltd and the application by Tim Barr Pty Ltd and Mr Barr are both dismissed with costs.

Orders

  • ['The application by Project 28 Pty Ltd is dismissed with costs.' 'The application by Tim Barr Pty Ltd and Mr Barr is dismissed with costs.']