Ciprijanovic v Schindler Lifts Australia Pty Ltd (No 2) [2013] NSWSC 505

Ciprijanovic v Schindler Lifts Australia Pty Ltd (No 2) [2013] NSWSC 505

Although the plaintiff's discontinuance ordinarily required her to pay the defendants' costs, the first defendant's unexplained failures to comply with a subpoena and court directions delayed revelation of decisive facts and would have justified an order that it pay the plaintiff's costs for the default period. Because a split costs order would likely cause further disproportionate expense, the overriding purpose justified ordering the plaintiff and first defendant each to bear their own costs. No comparable default or other basis existed in relation to the second defendant, so the plaintiff was ordered to pay the second defendant's costs.

Jurisdiction
Australia
Judgment Date
02 May 2013
Procedural Posture
Costs Application Following Discontinuance of Personal Injury Proceedings / Ex Tempore Judgment on Costs After Discontinuance
Outcome
Costs orders made after discontinuance.
Legal Topics
['discontinuance' 'costs Discretion' 'non Compliance With Court Orders' 'subpoena Compliance' 'expert Evidence' 'overriding Purpose']
['civil Procedure' 'costs' 'personal Injury'] ['discontinuance' 'costs Discretion' 'non Compliance With Court Orders' 'subpoena Compliance' 'expert Evidence' 'overriding Purpose']

Case Brief

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Procedural Posture

Costs Application Following Discontinuance of Personal Injury Proceedings / Ex Tempore Judgment on Costs After Discontinuance

Legal Issues

  1. 1 ['Whether the Court should depart from the usual costs consequence under r 42.19 of the Uniform Civil Procedure Rules after the plaintiff discontinued the proceedings.' "Whether the first defendant's defaults in complying with a subpoena and court directions justified an adverse or modified costs order against it." 'Whether there was any basis to order that the plaintiff and the second defendant each bear their own costs.']

Ratio Decidendi

Although the plaintiff's discontinuance ordinarily required her to pay the defendants' costs, the first defendant's unexplained failures to comply with a subpoena and court directions delayed revelation of decisive facts and would have justified an order that it pay the plaintiff's costs for the default period. Because a split costs order would likely cause further disproportionate expense, the overriding purpose justified ordering the plaintiff and first defendant each to bear their own costs. No comparable default or other basis existed in relation to the second defendant, so the plaintiff was ordered to pay the second defendant's costs.

Court Disposition

Costs orders made after discontinuance.

Orders

  • ['In respect of the claim between the plaintiff and the first defendant, each party is to pay her and its own costs of the proceedings.' "The plaintiff is to pay the second defendant's costs of the proceedings."]