Vic Cherikoff Food Services Pty Ltd v Cherikoff Rare Spices Pty Ltd (No 2) [2010] NSWIRComm 57

Vic Cherikoff Food Services Pty Ltd v Cherikoff Rare Spices Pty Ltd (No 2) [2010] NSWIRComm 57

The ordinary rule that costs follow the event applies, and the applicant who brought and then discontinued the claim must bear the costs incurred by the third respondent that would not have been incurred but for the applicant's participation. Change in general legal understanding due to appellate courts does not justify departure from this rule.

Jurisdiction
Australia
Judgment Date
07 May 2010
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Costs Judgment After Amendment of Summons and Part Discontinuance
Outcome
Orders for costs made in favour of the third respondent against the first applicant. Application against the second applicant is reserved.
Legal Topics
['costs' 'unfair Contract Proceedings' 'discontinuance' 'amendment of Pleadings']
['industrial Law'] ['costs' 'unfair Contract Proceedings' 'discontinuance' 'amendment of Pleadings']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Costs Judgment After Amendment of Summons and Part Discontinuance

Legal Issues

  1. 1 ['Whether the third respondent should be awarded costs thrown away by reason of the amendment removing the first applicant from proceedings' 'Whether circumstances justified a departure from the usual rule that costs follow the event']

Ratio Decidendi

The ordinary rule that costs follow the event applies, and the applicant who brought and then discontinued the claim must bear the costs incurred by the third respondent that would not have been incurred but for the applicant's participation. Change in general legal understanding due to appellate courts does not justify departure from this rule.

Court Disposition

Orders for costs made in favour of the third respondent against the first applicant. Application against the second applicant is reserved.

Orders

  • ['The first applicant is to pay the costs of the third respondent incurred in the performance of legal work that would not have been undertaken if the first applicant had not been a party to the proceedings, in an amount assessed in default of agreement. Those costs are payable forthwith.' "The third respondent's...