Douglas & Anor v Madden & Ors (No 4) [2010] NSWSC 904

Douglas & Anor v Madden & Ors (No 4) [2010] NSWSC 904

The plaintiffs' repeated failures to adhere to court directions and orders, their delays from June 2009 and January 2010 in providing material underpinning their expert reports, and their failure to comply with the Registrar's April 2010 orders constituted relevant misconduct and made the defendants' motion necessary. In light of the Civil Procedure Act 2005 and the history of the proceedings, justice required that the plaintiffs bear the defendants' costs of the motion on an indemnity basis, payable forthwith.

Jurisdiction
Australia
Judgment Date
16 August 2010
Procedural Posture
Professional Negligence Proceedings; Procedural Costs Ruling / Defendants' Motion Under Rule 12.7 of the Uniform Civil Procedure Rules 2005 to Dismiss for Want of Prosecution Was Not Pressed After Service of Outstanding Material; Defendants Pressed for Costs on an Indemnity Basis Payable Forthwith.
Outcome
Plaintiffs to bear defendants' costs of the motion on an indemnity basis, payable forthwith.
Legal Topics
['want of Prosecution' 'indemnity Costs' 'costs Payable Forthwith' 'delay' 'breach of Court Orders' 'overriding Purpose']
['civil Procedure' 'costs' 'professional Negligence'] ['want of Prosecution' 'indemnity Costs' 'costs Payable Forthwith' 'delay' 'breach of Court Orders' 'overriding Purpose']

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Procedural Posture

Professional Negligence Proceedings; Procedural Costs Ruling / Defendants' Motion Under Rule 12.7 of the Uniform Civil Procedure Rules 2005 to Dismiss for Want of Prosecution Was Not Pressed After Service of Outstanding Material; Defendants Pressed for Costs on an Indemnity Basis Payable Forthwith.

Legal Issues

  1. 1 ["Whether the plaintiffs' delay and repeated failures to comply with court directions and orders justified a departure from the usual costs order." "Whether the defendants' costs of the motion should be ordered on an indemnity basis payable forthwith." 'Whether an order that costs be payable forthwith would amount to an order for security for costs.']

Ratio Decidendi

The plaintiffs' repeated failures to adhere to court directions and orders, their delays from June 2009 and January 2010 in providing material underpinning their expert reports, and their failure to comply with the Registrar's April 2010 orders constituted relevant misconduct and made the defendants' motion necessary. In light of the Civil Procedure Act 2005 and the history of the proceedings, justice required that the plaintiffs bear the defendants' costs of the motion on an indemnity basis, payable forthwith.

Court Disposition

Plaintiffs to bear defendants' costs of the motion on an indemnity basis, payable forthwith.

Orders

  • ["The plaintiffs bear the defendants' costs of the motion on an indemnity basis, payable forthwith."]