Chapman v Dickinson (No 3) [2021] NSWDC 63

Chapman v Dickinson (No 3) [2021] NSWDC 63

Although the plaintiff failed on the earlier strike out application, the inconsistent defences maintained by the defendants made it reasonable for the plaintiff to raise the issue and the defendants' ability to maintain those positions was an indulgence granted for their benefit; however, some of the plaintiff's arguments lacked merit, so only 50% of the costs of that application were allowed and not on an indemnity basis. A stay pending appeal was justified because an arguable appeal point existed and refusal could make recovery of most of the judgment sum futile if the defendants succeeded, but the plaintiff's dire circumstances justified payment of a small portion of the judgment...

Jurisdiction
Australia
Judgment Date
23 February 2021
Procedural Posture
Civil Proceedings for Damages for Negligence; Costs and Stay Applications / Post Judgment Applications for Costs and Stay Pending Appeal
Outcome
Costs ordered for the plaintiff, including 50% of the costs of the earlier applications; judgment stayed pending determination of the appeal on terms.
Legal Topics
['party/party Costs' 'exceptions to General Rule That Costs Follow the Event' 'reserved Costs' 'indemnity Costs' 'stay Pending Appeal' 'enforcement of Judgment' 'inconsistent Defences' 'abuse of Process']
['civil Procedure' 'costs' 'stay of Proceedings' 'negligence'] ['party/party Costs' 'exceptions to General Rule That Costs Follow the Event' 'reserved Costs' 'indemnity Costs' 'stay Pending Appeal' 'enforcement of Judgment' 'inconsistent Defences' 'abuse of Process']

Case Brief

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Procedural Posture

Civil Proceedings for Damages for Negligence; Costs and Stay Applications / Post Judgment Applications for Costs and Stay Pending Appeal

Legal Issues

  1. 1 ['Whether the plaintiff should recover costs of the earlier unsuccessful strike out application, including whether those costs should be on an indemnity basis.' 'Whether the defendants should pay costs of the proceedings and applications determined on 23 February 2021.' "Whether judgment should be stayed pending determination of the defendants' intended appeal, and on what terms." 'Whether costs assessment should be excluded from the operation of any stay.']

Ratio Decidendi

Although the plaintiff failed on the earlier strike out application, the inconsistent defences maintained by the defendants made it reasonable for the plaintiff to raise the issue and the defendants' ability to maintain those positions was an indulgence granted for their benefit; however, some of the plaintiff's arguments lacked merit, so only 50% of the costs of that application were allowed and not on an indemnity basis. A stay pending appeal was justified because an arguable appeal point existed and refusal could make recovery of most of the judgment sum futile if the defendants succeeded, but the plaintiff's dire circumstances justified payment of a small portion of the judgment...

Court Disposition

Costs ordered for the plaintiff, including 50% of the costs of the earlier applications; judgment stayed pending determination of the appeal on terms.

Orders

  • ["The defendants pay the plaintiff's costs of the proceedings, such costs to include the costs of the applications determined today and 50% of the costs of and incidental to the applications determined 29 May 2020." "The judgment be stayed pending determination of the appeal on terms that 15% of the judgment sum be...