Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792

Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792

The orders for indemnity costs payable forthwith were set aside because the second respondent (Mr Armitage) did not attend the final stage of the hearing, was not aware his solicitor would seek leave to withdraw, and would be prevented from defending serious allegations if required to pay the costs order before judgment. The interests of justice required that the orders be varied to allow Mr Armitage to defend, while still recognising his responsibility for delays. Indemnity costs were re-ordered to be payable after judgment, in the taxed amount.

Jurisdiction
Australia
Judgment Date
27 June 2006
Procedural Posture
Application to Set Aside Interlocutory Orders / Post Interlocutory Application; Orders on Costs After Hearing
Outcome
Orders of 3 February 2006 for indemnity costs payable forthwith set aside and replaced; fresh orders for indemnity costs made; further costs orders made; specified affidavit paragraphs struck out unless amended defence/cross claim filed.
Legal Topics
['setting Aside Interlocutory Orders' 'indemnity Costs' 'default Judgment' "party's Obligations in Litigation" "responsibility for Solicitor's Actions"]
['practice and Procedure' 'civil Procedure'] ['setting Aside Interlocutory Orders' 'indemnity Costs' 'default Judgment' "party's Obligations in Litigation" "responsibility for Solicitor's Actions"]

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Procedural Posture

Application to Set Aside Interlocutory Orders / Post Interlocutory Application; Orders on Costs After Hearing

Legal Issues

  1. 1 ['Whether interlocutory orders for indemnity costs should be set aside where the affected party did not attend the final hearing and deposes to not knowing solicitor would withdraw' "Whether financial hardship or ill health excused the affected party's failure to defend or keep informed" "Whether party's absence or alleged solicitor's failings justify setting aside self-executing costs orders"]

Ratio Decidendi

The orders for indemnity costs payable forthwith were set aside because the second respondent (Mr Armitage) did not attend the final stage of the hearing, was not aware his solicitor would seek leave to withdraw, and would be prevented from defending serious allegations if required to pay the costs order before judgment. The interests of justice required that the orders be varied to allow Mr Armitage to defend, while still recognising his responsibility for delays. Indemnity costs were re-ordered to be payable after judgment, in the taxed amount.

Court Disposition

Orders of 3 February 2006 for indemnity costs payable forthwith set aside and replaced; fresh orders for indemnity costs made; further costs orders made; specified affidavit paragraphs struck out unless amended defence/cross claim filed.

Orders

  • ["Orders in paragraphs [2] and [3] of the orders made on 3 February 2006 are set aside and replaced: (a) First and second respondents to pay applicant's taxed indemnity costs ($26,666.02) after judgment; (b) Taxation already had stands as the taxation; (c) Time for payment extended to date after judgment; (d) No...