Harry Day v John Smidmore and others (No. 3) [2006] NSWIRComm 17

Harry Day v John Smidmore and others (No. 3) [2006] NSWIRComm 17

Even though the appellant's behaviour was reprehensible, the primary objective of the appeal was to set aside the permanent stay, and he was successful in that respect. The awarding of costs is not determined by the number of grounds won or lost but the overall success. However, the appellant's misconduct played a causative role in the notice of motion and ensuing litigation; thus, he was not entitled to costs at first instance but was entitled to the costs of the appeal.

Parties
Appellant: Harry Mark Day; First Respondent: John Michael Smidmore; Second Respondent: Christopher Ronald Michael; Third Respondent: Adolphi Pty Ltd
Jurisdiction
Australia
Judgment Date
06 February 2006
Procedural Posture
Appeal / Costs Determination Post Appeal
Outcome
Respondents to pay appellant's costs of the appeal; no order as to costs on the notice of motion.
Legal Topics
Costs, Abuse of Process, Permanent Stay, Litigation Misconduct
Industrial Relations Costs Abuse of Process Permanent Stay Litigation Misconduct

Case Brief

Summary, issues, holding and outcome

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Parties

Harry Mark Day

Appellant

John Michael Smidmore

First Respondent

Christopher Ronald Michael

Second Respondent

Adolphi Pty Ltd

Third Respondent

Procedural Posture

Appeal / Costs Determination Post Appeal

Legal Issues

  1. 1 Whether costs should be awarded to the appellant after success on appeal given the appellant's misconduct
  2. 2 Whether the respondents were justified in seeking a permanent stay based on the appellant's conduct
  3. 3 Whether the appellant's conduct disentitles him from an order for costs

Ratio Decidendi

Even though the appellant's behaviour was reprehensible, the primary objective of the appeal was to set aside the permanent stay, and he was successful in that respect. The awarding of costs is not determined by the number of grounds won or lost but the overall success. However, the appellant's misconduct played a causative role in the notice of motion and ensuing litigation; thus, he was not entitled to costs at first instance but was entitled to the costs of the appeal.

Court Disposition

Respondents to pay appellant's costs of the appeal; no order as to costs on the notice of motion.

Orders

  • The respondents shall pay the appellant's costs of the appeal.
  • No order as to costs on the notice of motion.