Dawn Wade and Ruth Wade v Joyce Wade [2017] NSWSC 1686

Dawn Wade and Ruth Wade v Joyce Wade [2017] NSWSC 1686

The plaintiffs had not paid the costs ordered as a condition of the stay, had not prosecuted the proceedings with due despatch, and did not oppose summary dismissal or ordinary costs. Leave to discontinue was inappropriate, no basis for indemnity costs was made out, but the defendant appropriately brought the motion apart from the indemnity costs claim, warranting dismissal of the proceedings and costs orders including 85 per cent of the defendant's costs of the notice of motion.

Jurisdiction
Australia
Judgment Date
14 November 2017
Procedural Posture
Notice of Motion for Summary Dismissal for Want of Prosecution With Due Despatch / Ex Tempore Judgment
Outcome
Proceedings dismissed for want of prosecution with due despatch; notice of motion otherwise dismissed; costs ordered against the plaintiffs.
Legal Topics
['summary Dismissal' 'want of Prosecution With Due Despatch' 'costs' 'discontinuance']
['procedure' 'civil Procedure'] ['summary Dismissal' 'want of Prosecution With Due Despatch' 'costs' 'discontinuance']

Case Brief

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Procedural Posture

Notice of Motion for Summary Dismissal for Want of Prosecution With Due Despatch / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the proceedings should be dismissed under rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), or the Court's inherent jurisdiction, on the ground that the plaintiffs had not prosecuted the proceedings with due despatch." 'Whether the plaintiffs should be granted leave to discontinue the proceedings rather than have them dismissed.' "Whether the plaintiffs should pay the defendant's costs of the proceedings and of the notice of motion, including whether indemnity costs were justified."]

Ratio Decidendi

The plaintiffs had not paid the costs ordered as a condition of the stay, had not prosecuted the proceedings with due despatch, and did not oppose summary dismissal or ordinary costs. Leave to discontinue was inappropriate, no basis for indemnity costs was made out, but the defendant appropriately brought the motion apart from the indemnity costs claim, warranting dismissal of the proceedings and costs orders including 85 per cent of the defendant's costs of the notice of motion.

Court Disposition

Proceedings dismissed for want of prosecution with due despatch; notice of motion otherwise dismissed; costs ordered against the plaintiffs.

Orders

  • ['Order that the proceedings be dismissed.' "Order that the plaintiffs pay 85% of the defendant's costs of the Notice of Motion filed on 27 October 2017." 'Order that the notice of motion be otherwise dismissed.' "Order that the plaintiffs pay the defendant's costs of the proceedings on a party/party basis."]