Madsen v Darmali (No 3) [2024] NSWSC 582

Madsen v Darmali (No 3) [2024] NSWSC 582

The Court declined to vary the costs order notwithstanding the plaintiff's consent because the defendants' 5 February 2024 submissions were comprehensive submissions in chief, not a note in reply within the leave granted; the defendants had received a reasonable opportunity to be heard; serving submissions beyond the bounds of leave is a professional conduct matter and is not appropriately remedied by party consent; and the Court retained responsibility to supervise the conduct of practitioners appearing before it.

Jurisdiction
Australia
Judgment Date
17 May 2024
Procedural Posture
Motion to Vary Costs Order / Consequential Orders in Equity Expedition List
Outcome
Defendants' motion dismissed.
Legal Topics
['submissions Served After Hearing Without Leave' 'variation of Orders by Consent' 'professional Responsibilities of Counsel' 'reasonable Opportunity to Be Heard' 'indemnity Costs']
['legal Profession' 'civil Procedure' 'costs' 'procedural Fairness'] ['submissions Served After Hearing Without Leave' 'variation of Orders by Consent' 'professional Responsibilities of Counsel' 'reasonable Opportunity to Be Heard' 'indemnity Costs']

Case Brief

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Procedural Posture

Motion to Vary Costs Order / Consequential Orders in Equity Expedition List

Legal Issues

  1. 1 ["Whether the Court should exercise its discretion under r 36.15(2) of the Uniform Civil Procedure Rules 2005 (NSW) to vary a costs order by consent so that the plaintiff pays the defendants' costs of submissions served beyond the scope of leave." 'Whether the defendants were denied procedural fairness at the hearing because their counsel did not complete all submissions he wished to make.' 'Whether submissions served on 5 February 2024 were within the leave granted by the Court.' "Whether the plaintiff's consent to pay costs of submissions served without leave could justify a costs order for those submissions."]

Ratio Decidendi

The Court declined to vary the costs order notwithstanding the plaintiff's consent because the defendants' 5 February 2024 submissions were comprehensive submissions in chief, not a note in reply within the leave granted; the defendants had received a reasonable opportunity to be heard; serving submissions beyond the bounds of leave is a professional conduct matter and is not appropriately remedied by party consent; and the Court retained responsibility to supervise the conduct of practitioners appearing before it.

Court Disposition

Defendants' motion dismissed.

Orders

  • ['Dismiss motion to vary orders by consent.' "The defendants' motion filed on 26 March 2024 seeking to vary the earlier costs order is dismissed."]