Commonwealth Bank of Australia v Daleport Pty Limited (in receivership) (No 4) [2018] NSWSC 842

Commonwealth Bank of Australia v Daleport Pty Limited (in receivership) (No 4) [2018] NSWSC 842

Given the discrete nature of the discovery dispute, the protracted history, the demonstrated likelihood of stultification if costs are not paid forthwith, and the overall conduct of the parties, the plaintiff should pay two thirds of the defendants' costs of the discovery motion, such costs to be payable forthwith.

Parties
Plaintiff: Commonwealth Bank of Australia; First Defendant: Daleport Pty Ltd (in receivership); Second Defendant: Alexander Raymond Walton
Jurisdiction
Australia
Judgment Date
11 May 2018
Procedural Posture
Civil / Interlocutory (costs of Discovery Motion)
Outcome
Plaintiff ordered to pay two thirds of the defendants' costs of the discovery motion, such costs to be payable forthwith.
Legal Topics
Costs, Discovery, Interlocutory Applications
Civil Procedure Costs Discovery Interlocutory Applications

Case Brief

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Parties

Commonwealth Bank of Australia

Plaintiff

Daleport Pty Ltd (in receivership)

First Defendant

Alexander Raymond Walton

Second Defendant

Procedural Posture

Civil / Interlocutory (costs of Discovery Motion)

Legal Issues

  1. 1 Whether the plaintiff should pay the defendants' costs of the discovery motion and whether those costs should be payable forthwith
  2. 2 Whether refusal to order payment forthwith would stultify defence of the claim
  3. 3 Whether the defence of claim is futile and whether that is relevant to costs

Ratio Decidendi

Given the discrete nature of the discovery dispute, the protracted history, the demonstrated likelihood of stultification if costs are not paid forthwith, and the overall conduct of the parties, the plaintiff should pay two thirds of the defendants' costs of the discovery motion, such costs to be payable forthwith.

Court Disposition

Plaintiff ordered to pay two thirds of the defendants' costs of the discovery motion, such costs to be payable forthwith.

Orders

  • Plaintiff to pay two thirds of the defendants' costs of the discovery motion including the hearing, such costs to be payable forthwith.