Loney v Luthra Group Pty Ltd trading as Sussex Inlet Service Station [2022] NSWDC 350

Loney v Luthra Group Pty Ltd trading as Sussex Inlet Service Station [2022] NSWDC 350

The applicant did not obtain the order it sought for deconstruction of the Nozzle and withdrew the motion in the face of the manufacturer's independent opinion supporting the respondent's opposition. The manufacturer's opinion was not a purely supervening event that displaced the practical outcome, because risk of damage and the interests of other parties were already live considerations. The respondent, a third party, was entitled to oppose the application and was not disentitled from costs by its conduct. Neither settlement offer justified a different or indemnity costs order. The motion was therefore dismissed and the applicant was ordered to pay the respondent's costs on the ordinary...

Jurisdiction
Australia
Judgment Date
18 August 2022
Procedural Posture
Civil Personal Injury Proceeding; Defendant's Notice of Motion Under R 23.8 of the Uniform Civil Procedure Rules 2005 (nsw) for Inspection and Deconstruction of a Gas Pump Nozzle Held by a Third Party / Costs Determination After the Defendant Withdrew Its Primary Application and Agreed to Dismissal of the Motion Following the Manufacturer's Opinion About Risk of Damage
Outcome
Defendant's notice of motion dismissed; defendant ordered to pay Elgas Ltd's costs of and occasioned by the motion on the ordinary basis; Elgas Ltd directed, with its consent, to preserve the subject Nozzle until conclusion of the substantive proceeding.
Legal Topics
['inspection and Deconstruction of Property in Possession of a Third Party' 'withdrawal of Notice of Motion' 'costs Following the Event' 'calderbank Offers' 'preservation of Evidence' 'non Party Costs']
['civil Procedure' 'costs' 'personal Injury'] ['inspection and Deconstruction of Property in Possession of a Third Party' 'withdrawal of Notice of Motion' 'costs Following the Event' 'calderbank Offers' 'preservation of Evidence' 'non Party Costs']

Case Brief

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Procedural Posture

Civil Personal Injury Proceeding; Defendant's Notice of Motion Under R 23.8 of the Uniform Civil Procedure Rules 2005 (nsw) for Inspection and Deconstruction of a Gas Pump Nozzle Held by a Third Party / Costs Determination After the Defendant Withdrew Its Primary Application and Agreed to Dismissal of the Motion Following the Manufacturer's Opinion About Risk of Damage

Legal Issues

  1. 1 ["Whether the defendant's withdrawn application for inspection and deconstruction of the Nozzle should be dismissed" 'Whether Elgas Ltd should be directed to preserve the Nozzle and notify the applicant if another party sought to inspect, test or deconstruct it' "Whether the respondent should receive its costs of the motion despite the applicant's submission that the manufacturer's view was a supervening event" "Whether the respondent's conduct disentitled it to a costs order" "Whether either party's 15 August 2022 settlement offer affected the costs order"]

Ratio Decidendi

The applicant did not obtain the order it sought for deconstruction of the Nozzle and withdrew the motion in the face of the manufacturer's independent opinion supporting the respondent's opposition. The manufacturer's opinion was not a purely supervening event that displaced the practical outcome, because risk of damage and the interests of other parties were already live considerations. The respondent, a third party, was entitled to oppose the application and was not disentitled from costs by its conduct. Neither settlement offer justified a different or indemnity costs order. The motion was therefore dismissed and the applicant was ordered to pay the respondent's costs on the ordinary...

Court Disposition

Defendant's notice of motion dismissed; defendant ordered to pay Elgas Ltd's costs of and occasioned by the motion on the ordinary basis; Elgas Ltd directed, with its consent, to preserve the subject Nozzle until conclusion of the substantive proceeding.

Orders

  • ["The defendant's notice of motion dated 14 February 2022 is dismissed." 'The defendant is to pay the costs of and occasioned to Elgas Ltd by its motion, on the ordinary basis.' 'The Court further directs that, with its consent, Elgas Ltd is to preserve the subject Nozzle until the conclusion of the substantive...