Mitchell v Tucker [2010] NSWSC 672

Mitchell v Tucker [2010] NSWSC 672

Because the defendants immediately foreshadowed an application to vary the costs order when judgment was delivered, the Court had power to entertain the application despite the absence of a notice of motion, either because no notice was required for variation of an ancillary costs order or because s 14 of the Civil Procedure Act 2005 permitted dispensation. The plaintiff's dismissal was less favourable than the offers of compromise, so the costs order was varied to provide party and party costs up to and including 14 July 2009 and indemnity costs thereafter.

Jurisdiction
Australia
Judgment Date
27 April 2010
Procedural Posture
Procedural and Other Ruling / Application to Vary Costs Order After Dismissal of Summons
Outcome
Costs order varied.
Legal Topics
['entry of Orders' 'variation of Orders' 'offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'notice of Motion to Vary Orders']
['civil Procedure' 'costs'] ['entry of Orders' 'variation of Orders' 'offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'notice of Motion to Vary Orders']

Case Brief

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Procedural Posture

Procedural and Other Ruling / Application to Vary Costs Order After Dismissal of Summons

Legal Issues

  1. 1 ['Whether the Court had power to vary the costs order made on 4 March 2010 despite no notice of motion being filed within 14 days.' "Whether the plaintiff should pay the defendants' costs on an indemnity basis after an offer of compromise where the plaintiff obtained a less favourable result."]

Ratio Decidendi

Because the defendants immediately foreshadowed an application to vary the costs order when judgment was delivered, the Court had power to entertain the application despite the absence of a notice of motion, either because no notice was required for variation of an ancillary costs order or because s 14 of the Civil Procedure Act 2005 permitted dispensation. The plaintiff's dismissal was less favourable than the offers of compromise, so the costs order was varied to provide party and party costs up to and including 14 July 2009 and indemnity costs thereafter.

Court Disposition

Costs order varied.

Orders

  • ['Order 2 made on 4 March 2010 was varied to read: "I order that the plaintiff pay the costs of the defendants, such costs to be on the party and party basis up to and including 14 July 2009 and thereafter on the indemnity basis."']