McIlraith v Ilkin & anor (Costs) [2007] NSWSC 1052

McIlraith v Ilkin & anor (Costs) [2007] NSWSC 1052

Leave to further amend was refused because the proceedings had already been summarily dismissed after a contested hearing, no draft amended pleading was provided, and it would be inappropriate to permit amendment without the first defendant having an opportunity to consider the proposed pleading. The plaintiff was ordered to pay the first defendant's costs on an indemnity basis because the proceedings were doomed to fail, were wholly inappropriate for the court's summary supervisory jurisdiction, were brought many years after the events, and the plaintiff persisted despite being warned and offered discontinuance without costs. The recoverable costs include the first defendant's reasonable...

Jurisdiction
Australia
Judgment Date
21 September 2007
Procedural Posture
Costs Application Following Summary Dismissal; Application for Leave to Further Amend Statement of Claim / Post Dismissal Costs and Amendment Ruling
Outcome
Leave to further amend refused; plaintiff to pay the first defendant's costs on the indemnity basis, including reasonable professional costs of acting for himself.
Legal Topics
['indemnity Costs' 'summary Dismissal' 'leave to Amend' 'solicitor Litigant Costs' 'chorley Exception']
['civil Procedure' 'costs' 'legal Profession'] ['indemnity Costs' 'summary Dismissal' 'leave to Amend' 'solicitor Litigant Costs' 'chorley Exception']

Case Brief

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Procedural Posture

Costs Application Following Summary Dismissal; Application for Leave to Further Amend Statement of Claim / Post Dismissal Costs and Amendment Ruling

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file a further amended statement of claim after the proceedings had been summarily dismissed.' "Whether the plaintiff should pay the first defendant's costs on an indemnity basis." 'Whether a solicitor litigant acting for himself is entitled to recover professional costs for work done by himself.']

Ratio Decidendi

Leave to further amend was refused because the proceedings had already been summarily dismissed after a contested hearing, no draft amended pleading was provided, and it would be inappropriate to permit amendment without the first defendant having an opportunity to consider the proposed pleading. The plaintiff was ordered to pay the first defendant's costs on an indemnity basis because the proceedings were doomed to fail, were wholly inappropriate for the court's summary supervisory jurisdiction, were brought many years after the events, and the plaintiff persisted despite being warned and offered discontinuance without costs. The recoverable costs include the first defendant's reasonable...

Court Disposition

Leave to further amend refused; plaintiff to pay the first defendant's costs on the indemnity basis, including reasonable professional costs of acting for himself.

Orders

  • ['Refuse leave to further amend the statement of claim.' 'Order that the costs referred to in Order 2 made on 23 August 2007 be assessed on the indemnity basis.']