El-Mir & 1 Or v Risk [No 2] [2005] NSWCA 260

El-Mir & 1 Or v Risk [No 2] [2005] NSWCA 260

The appellants should bear the costs of proceedings in the District Court from 22 August 2001 up to and including the hearing of the reference due to their failure to plead accord and satisfaction earlier, and Order 6 should be amended under the slip rule to correct the monetary amount, while costs of the adoption hearing are left to the judge determining the separate issue and the parties bear their own costs for written submissions following the primary judgment.

Jurisdiction
Australia
Judgment Date
08 August 2005
Procedural Posture
Appeal / Judgment on Costs Following Primary Judgment
Outcome
Grant of leave to amend defence is made conditional; correction of Order 6; costs directions provided.
Legal Topics
['costs' 'amendment of Defence' 'slip Rule']
['civil Procedure'] ['costs' 'amendment of Defence' 'slip Rule']

Case Brief

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Procedural Posture

Appeal / Judgment on Costs Following Primary Judgment

Legal Issues

  1. 1 ['Appropriate terms for grant of leave to amend defence' 'Assessment and allocation of costs resulting from conduct of proceedings' 'Rectification of order under slip rule']

Ratio Decidendi

The appellants should bear the costs of proceedings in the District Court from 22 August 2001 up to and including the hearing of the reference due to their failure to plead accord and satisfaction earlier, and Order 6 should be amended under the slip rule to correct the monetary amount, while costs of the adoption hearing are left to the judge determining the separate issue and the parties bear their own costs for written submissions following the primary judgment.

Court Disposition

Grant of leave to amend defence is made conditional; correction of Order 6; costs directions provided.

Orders

  • ["The grant of leave to amend the defence in Order 3 of the Court's orders in the primary judgment be subject to the appellants paying the costs of the proceedings in the District Court from 22 August 2001 up to and including the hearing of the reference by Mr O'Mara on 17 March 2003." 'Costs of the adoption hearing...