McDonald v Shone & Ors [2010] NSWSC 856

McDonald v Shone & Ors [2010] NSWSC 856

Although Mr McDonald succeeded in resisting Mr Shone's motion, justice required departure from the usual costs order. There was no misconduct by Mr Shone warranting indemnity costs. Mr McDonald's deficient pleadings, the late abandonment of claims against Horwath which unnecessarily caused expense, incomplete disclosure to the Registrar regarding service, and the concession that the statement of claim required substantial amendment meant it would not be just to order Mr Shone to pay Mr McDonald's costs. Each party therefore had to bear its own costs of the motion.

Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Procedural and Other Ruling; Costs / Determination of Costs Following Dismissal of Mr Shone's Motion
Outcome
Mr McDonald's application for costs payable forthwith on an indemnity basis was refused; each party was ordered to bear its own costs of the motion.
Legal Topics
['costs Discretion' 'indemnity Costs' 'departure From Usual Costs Order' 'conduct of Parties' 'pleadings' 'service Out of Time' 'inappropriate Forum']
['civil Procedure' 'costs'] ['costs Discretion' 'indemnity Costs' 'departure From Usual Costs Order' 'conduct of Parties' 'pleadings' 'service Out of Time' 'inappropriate Forum']

Case Brief

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Procedural Posture

Procedural and Other Ruling; Costs / Determination of Costs Following Dismissal of Mr Shone's Motion

Legal Issues

  1. 1 ["Whether Mr McDonald should receive his costs of Mr Shone's dismissed motion payable forthwith on an indemnity basis." 'Whether the Court should depart from the usual costs order and order that each party bear its own costs of the motion.' "Whether Mr Shone's conduct warranted an indemnity costs order." "Whether Mr McDonald's conduct of the proceedings, including deficient pleadings, late discontinuance against Horwath, and inadequate disclosure on service, justified departure from the usual costs order."]

Ratio Decidendi

Although Mr McDonald succeeded in resisting Mr Shone's motion, justice required departure from the usual costs order. There was no misconduct by Mr Shone warranting indemnity costs. Mr McDonald's deficient pleadings, the late abandonment of claims against Horwath which unnecessarily caused expense, incomplete disclosure to the Registrar regarding service, and the concession that the statement of claim required substantial amendment meant it would not be just to order Mr Shone to pay Mr McDonald's costs. Each party therefore had to bear its own costs of the motion.

Court Disposition

Mr McDonald's application for costs payable forthwith on an indemnity basis was refused; each party was ordered to bear its own costs of the motion.

Orders

  • ['Each party bear its own costs of the motion.']