Conway v Critchley (No 2) [2012] NSWSC 1542

Conway v Critchley (No 2) [2012] NSWSC 1542

The plaintiff's claim to ownership and possession of the wine storage tanks was based on knowingly false allegations, involved maintaining a fiction about non-existent tanks, misled Debelle AJ on the summary judgment application, and constituted a sufficiently severable claim that should never have been made. That improper conduct justified indemnity costs for that aspect of the proceedings, setting aside the earlier costs order and substituting a reduced costs order reflecting the plaintiff's partial success, and making the costs assessable forthwith because the determined separate questions were discrete and delaying costs would not assist the just, quick and cheap resolution of the...

Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Costs / Costs Determination Following Judgment on Separate Questions
Outcome
The Court made costs orders in favour of the first to fifth defendants on the wine storage tanks claim, varied the earlier costs order, ordered costs assessable forthwith, and refused the plaintiff's stay application.
Legal Topics
['indemnity Costs' 'costs Payable Forthwith' 'separate Question' 'setting Aside Costs Order' 'stay of Enforcement or Execution of Assessed Costs']
['costs' 'civil Procedure'] ['indemnity Costs' 'costs Payable Forthwith' 'separate Question' 'setting Aside Costs Order' 'stay of Enforcement or Execution of Assessed Costs']

Case Brief

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Procedural Posture

Costs / Costs Determination Following Judgment on Separate Questions

Legal Issues

  1. 1 ['Whether the plaintiff should pay the costs of the first to fifth defendants on an indemnity basis in relation to the claim for the 33 wine storage tanks.' 'Whether the order for costs made by Acting Justice Debelle on 5 June 2009 should be set aside.' 'Whether the costs orders should be assessable forthwith.' "Whether the plaintiff's application for a stay of enforcement or execution of any assessed costs should be granted."]

Ratio Decidendi

The plaintiff's claim to ownership and possession of the wine storage tanks was based on knowingly false allegations, involved maintaining a fiction about non-existent tanks, misled Debelle AJ on the summary judgment application, and constituted a sufficiently severable claim that should never have been made. That improper conduct justified indemnity costs for that aspect of the proceedings, setting aside the earlier costs order and substituting a reduced costs order reflecting the plaintiff's partial success, and making the costs assessable forthwith because the determined separate questions were discrete and delaying costs would not assist the just, quick and cheap resolution of the...

Court Disposition

The Court made costs orders in favour of the first to fifth defendants on the wine storage tanks claim, varied the earlier costs order, ordered costs assessable forthwith, and refused the plaintiff's stay application.

Orders

  • ["The plaintiff should pay the costs of the first to fifth defendants of the proceedings on an indemnity basis in relation to the plaintiff's claim for ownership and possession of the wine storage tanks." 'The plaintiff should pay the costs of the first to fifth defendants of the proceedings on the ordinary basis in...