McDonald v Shone and Ors [2010] NSWSC 467

McDonald v Shone and Ors [2010] NSWSC 467

The proceedings against Horwath were dismissed by consent, but costs were awarded because the claims against it had no foundation and, after Ms Chiu's evidence and Horwath's submissions, should not have been pursued; indemnity costs were justified from 21 April 2010. The ex parte extension of time for service on Mr Shone was not set aside because the Registrar was not shown to have been misled, the live claims were not shown to have been statute barred when time was extended, and setting aside service would not serve justice where fresh proceedings could still be brought. New South Wales was not shown to be a clearly inappropriate forum for the remaining claim against Mr Shone. The...

Jurisdiction
Australia
Judgment Date
21 May 2010
Procedural Posture
Procedural and Other Rulings / Notices of Motion Concerning Dismissal of Proceedings Against the Third Defendant and the First Defendant's Applications About Service, Jurisdiction, Stay and Striking Out
Outcome
Proceedings against Horwath dismissed; Mr Shone's motions dismissed; costs ordered in favour of Horwath against Mr McDonald partly on the usual basis and partly on an indemnity basis.
Legal Topics
['costs' 'indemnity Costs' 'service of Originating Process' 'extension of Time for Service' 'jurisdiction' 'forum Non Conveniens' 'permanent Stay' 'strike Out' 'summary Dismissal' 'collateral Agreements' 'misrepresentation']
['civil Procedure' 'contract' 'corporations'] ['costs' 'indemnity Costs' 'service of Originating Process' 'extension of Time for Service' 'jurisdiction' 'forum Non Conveniens' 'permanent Stay' 'strike Out' 'summary Dismissal' 'collateral Agreements' 'misrepresentation']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Notices of Motion Concerning Dismissal of Proceedings Against the Third Defendant and the First Defendant's Applications About Service, Jurisdiction, Stay and Striking Out

Legal Issues

  1. 1 ['Whether the proceedings against Horwath should be dismissed and on what costs basis' 'Whether the ex parte order extending time to serve the pleadings on Mr Shone should be set aside' 'Whether New South Wales was a clearly inappropriate forum for the claim against Mr Shone' 'Whether the pleaded claim against Mr Shone was so hopeless that it should be struck out or dismissed']

Ratio Decidendi

The proceedings against Horwath were dismissed by consent, but costs were awarded because the claims against it had no foundation and, after Ms Chiu's evidence and Horwath's submissions, should not have been pursued; indemnity costs were justified from 21 April 2010. The ex parte extension of time for service on Mr Shone was not set aside because the Registrar was not shown to have been misled, the live claims were not shown to have been statute barred when time was extended, and setting aside service would not serve justice where fresh proceedings could still be brought. New South Wales was not shown to be a clearly inappropriate forum for the remaining claim against Mr Shone. The...

Court Disposition

Proceedings against Horwath dismissed; Mr Shone's motions dismissed; costs ordered in favour of Horwath against Mr McDonald partly on the usual basis and partly on an indemnity basis.

Orders

  • ['The proceedings against Horwarth be dismissed.' "Mr Shone's motions be dismissed." "Mr McDonald bear Horwarth's costs as agreed until 21 April 2010 and from that date on an indemnity basis."]