Madsen v Darmali (No 2) [2024] NSWSC 268

Madsen v Darmali (No 2) [2024] NSWSC 268

All three recognised categories for making a forthwith costs order are present: the motion was a discrete matter, there was unreasonable conduct by the plaintiff, and the litigation is ongoing. No evidence that a forthwith order would stultify proceedings or deny access to justice. Given the plaintiff's asset divestiture and terminal illness, the defendants should not bear the credit risk or be delayed in receiving costs.

Jurisdiction
Australia
Judgment Date
19 March 2024
Procedural Posture
Equity / Costs Application Following Setting Aside of Ex Parte Orders
Outcome
Order made varying the previous costs order to require indemnity costs payable forthwith, except for certain written submissions.
Legal Topics
['ex Parte Orders' 'indemnity Costs' 'payable Forthwith' "court's Discretion"]
['costs'] ['ex Parte Orders' 'indemnity Costs' 'payable Forthwith' "court's Discretion"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity / Costs Application Following Setting Aside of Ex Parte Orders

Legal Issues

  1. 1 ['Whether the order for costs should be payable forthwith' 'Whether costs should be ordered on an indemnity basis']

Ratio Decidendi

All three recognised categories for making a forthwith costs order are present: the motion was a discrete matter, there was unreasonable conduct by the plaintiff, and the litigation is ongoing. No evidence that a forthwith order would stultify proceedings or deny access to justice. Given the plaintiff's asset divestiture and terminal illness, the defendants should not bear the credit risk or be delayed in receiving costs.

Court Disposition

Order made varying the previous costs order to require indemnity costs payable forthwith, except for certain written submissions.

Orders

  • ["Vary Order 4 made on 9 February 2024 such that the plaintiff is to pay the first and second defendants' costs of the motion filed on 30 January 2024 on an indemnity basis payable forthwith, other than the costs of the defendants' written submissions served on 5 February 2024."]