Lysaght Bros and Co Ltd v Falk (No 2) [1905] HCA 14

Lysaght Bros and Co Ltd v Falk (No 2) [1905] HCA 14

The High Court held that an order for the payment of appeal costs is not enforceable by writ of attachment under the High Court Rules. Moreover, payment of such costs cannot be made a condition precedent to proceeding to a new trial in the absence of distinct authority for that practice.

Parties
Appellants: Lysaght Bros. & Co. Ltd.; Respondent: Falk
Jurisdiction
Australia
Judgment Date
26 May 1905
Procedural Posture
Appeal / Motion for Writ of Attachment and Condition for Proceeding to Trial
Outcome
Motion dismissed with costs. Set-off of costs allowed.
Legal Topics
Costs, Enforcement of Judgments, Attachment, New Trial
Civil Procedure Costs Enforcement of Judgments Attachment New Trial

Case Brief

Summary, issues, holding and outcome

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Parties

Lysaght Bros. & Co. Ltd.

Appellants

Falk

Respondent

Procedural Posture

Appeal / Motion for Writ of Attachment and Condition for Proceeding to Trial

Legal Issues

  1. 1 Whether an order for payment of costs after appeal can be enforced by writ of attachment under the High Court Procedure Act 1903 and Rules of the High Court 1903
  2. 2 Whether payment of the costs of appeal should be a condition precedent to proceeding to a new trial

Ratio Decidendi

The High Court held that an order for the payment of appeal costs is not enforceable by writ of attachment under the High Court Rules. Moreover, payment of such costs cannot be made a condition precedent to proceeding to a new trial in the absence of distinct authority for that practice.

Court Disposition

Motion dismissed with costs. Set-off of costs allowed.

Orders

  • Motion for writ of attachment dismissed with costs.
  • Set-off of costs allowed.