Tory v Megna [2012] NSWCA 41

Tory v Megna [2012] NSWCA 41

Although the submitting appearance was filed deliberately and on legal advice, Mr Marshall's later loss of legal representation was a significant change in circumstances. The prejudice to the respondents from delay and wasted costs did not justify shutting the applicant out from contesting the appeal, particularly because the hearing date had already been vacated, the next hearing date was unlikely to be before June, and costs and security conditions could address most prejudice. Leave to withdraw the submitting appearance was therefore granted subject to conditions, including costs thrown away and $62,000 security for costs within 21 days.

Jurisdiction
Australia
Judgment Date
12 March 2012
Procedural Posture
Interlocutory Application in an Appeal / Notice of Motion Seeking Leave to Withdraw a Submitting Appearance
Outcome
Leave granted to withdraw the submitting appearance and file a contested appearance in lieu, subject to conditions.
Legal Topics
['submitting Appearance' 'leave to Withdraw Appearance' 'security for Costs' 'costs Thrown Away' 'conditions on Leave']
['civil Procedure' 'appellate Procedure'] ['submitting Appearance' 'leave to Withdraw Appearance' 'security for Costs' 'costs Thrown Away' 'conditions on Leave']

Case Brief

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Procedural Posture

Interlocutory Application in an Appeal / Notice of Motion Seeking Leave to Withdraw a Submitting Appearance

Legal Issues

  1. 1 ['Whether Mr Tory should be granted leave to withdraw the submitting appearance filed on 8 July 2011.' 'What conditions, if any, should be imposed if leave to withdraw the submitting appearance is granted.' 'Whether security for costs should be ordered and in what amount.']

Ratio Decidendi

Although the submitting appearance was filed deliberately and on legal advice, Mr Marshall's later loss of legal representation was a significant change in circumstances. The prejudice to the respondents from delay and wasted costs did not justify shutting the applicant out from contesting the appeal, particularly because the hearing date had already been vacated, the next hearing date was unlikely to be before June, and costs and security conditions could address most prejudice. Leave to withdraw the submitting appearance was therefore granted subject to conditions, including costs thrown away and $62,000 security for costs within 21 days.

Court Disposition

Leave granted to withdraw the submitting appearance and file a contested appearance in lieu, subject to conditions.

Orders

  • ['Order that the submitting appearance filed by Mr Tory on 8 July 2011 may be withdrawn and a contested appearance filed in lieu.' "Order (1) subject to conditions 1 to 5 in Mr Molomby's document, varying condition 3 to make it 21 days and the amount $62,000." 'Grant liberty to apply to the Registrar of the Court of...