Karteris v Omonoia Constructions & Ors [2009] NSWDDT 19

Karteris v Omonoia Constructions & Ors [2009] NSWDDT 19

Although the notice of motion was dismissed because its subject matter had disappeared when the plaintiff ceased relying on the s25B notices, it was not appropriate to order the plaintiff to pay the defendant's costs. The matter had proceeded alongside Apostolopoulos, and if it had been dealt with earlier it was highly likely a ruling on at least part of the motion would have been in the plaintiff's favour; further, neither side resolved the issue before the hearing date. In all the circumstances, the preferable order was that the costs of the motion be costs in the proceedings.

Jurisdiction
Australia
Judgment Date
23 July 2009
Procedural Posture
Dust Diseases Tribunal Proceedings Concerning Costs / Decision on Costs After Dismissal of the First Defendant's Notice of Motion Concerning the Plaintiff's S25 B Notice
Outcome
Costs of the dismissed motion are to be costs in the proceedings.
Legal Topics
['costs of Motion' 'dust Diseases Tribunal Act 1989 S25 B Notice' 'leave to Re Litigate and Re Argue Determinations' 'issues of a General Nature']
['dust Diseases' 'civil Procedure' 'costs'] ['costs of Motion' 'dust Diseases Tribunal Act 1989 S25 B Notice' 'leave to Re Litigate and Re Argue Determinations' 'issues of a General Nature']

Case Brief

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Procedural Posture

Dust Diseases Tribunal Proceedings Concerning Costs / Decision on Costs After Dismissal of the First Defendant's Notice of Motion Concerning the Plaintiff's S25 B Notice

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendant's costs of a notice of motion after the plaintiff ceased relying on the s25B notices and the motion was dismissed." 'Whether costs of the motion should instead abide the outcome of the proceedings.']

Ratio Decidendi

Although the notice of motion was dismissed because its subject matter had disappeared when the plaintiff ceased relying on the s25B notices, it was not appropriate to order the plaintiff to pay the defendant's costs. The matter had proceeded alongside Apostolopoulos, and if it had been dealt with earlier it was highly likely a ruling on at least part of the motion would have been in the plaintiff's favour; further, neither side resolved the issue before the hearing date. In all the circumstances, the preferable order was that the costs of the motion be costs in the proceedings.

Court Disposition

Costs of the dismissed motion are to be costs in the proceedings.

Orders

  • ['The notice of motion was dismissed.' 'The costs of the motion are to be costs in the proceedings.']