Ralston and Collins v Chaffey (No. 2) [2019] NSWSC 793

Ralston and Collins v Chaffey (No. 2) [2019] NSWSC 793

The plaintiff's conduct leading to and during the notice of motion exhibited relevant delinquency, misconduct and plainly unreasonable behaviour, including repeated non-compliance with directions, failure to comply with the guillotine order, improper pursuit and presentation of expert evidence, inconsistency in the asserted basis for Dr Chow's report, non-compliance with expert report requirements, and unnecessary adjournments caused by the plaintiff's solicitor. That conduct caused unnecessary delay and expense to the second defendant. The plaintiff's earlier conduct was relevant to the costs discretion under the Civil Procedure Act 2005 (NSW), and the absence of a prior warning did not...

Jurisdiction
Australia
Judgment Date
28 June 2019
Procedural Posture
Costs Application on Notice of Motion / Application on the Papers to Vary a Costs Order Made After Judgment on an Interlocutory Motion
Outcome
Application granted; order 3 made on 21 December 2018 varied to require payment of the second defendant's costs on an indemnity basis.
Legal Topics
['indemnity Costs' 'party/party Costs' 'variation of Costs Order' 'failure to Comply With Court Directions' 'overriding Purpose Under the Civil Procedure Act 2005 (nsw)' 'expert Evidence']
['civil Procedure' 'costs'] ['indemnity Costs' 'party/party Costs' 'variation of Costs Order' 'failure to Comply With Court Directions' 'overriding Purpose Under the Civil Procedure Act 2005 (nsw)' 'expert Evidence']

Case Brief

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Procedural Posture

Costs Application on Notice of Motion / Application on the Papers to Vary a Costs Order Made After Judgment on an Interlocutory Motion

Legal Issues

  1. 1 ["Whether order 3 made on 21 December 2018 should be varied so that the plaintiff pay the second defendant's costs of the motion on an indemnity basis." "Whether the plaintiff's conduct of the proceedings and the motion involved relevant delinquency, misconduct or plainly unreasonable conduct warranting indemnity costs." "Whether the second defendant's failure to give notice or warning of an intention to seek indemnity costs weighed against making such an order." "Whether the plaintiff's earlier conduct of the proceedings was relevant to the costs discretion for the motion."]

Ratio Decidendi

The plaintiff's conduct leading to and during the notice of motion exhibited relevant delinquency, misconduct and plainly unreasonable behaviour, including repeated non-compliance with directions, failure to comply with the guillotine order, improper pursuit and presentation of expert evidence, inconsistency in the asserted basis for Dr Chow's report, non-compliance with expert report requirements, and unnecessary adjournments caused by the plaintiff's solicitor. That conduct caused unnecessary delay and expense to the second defendant. The plaintiff's earlier conduct was relevant to the costs discretion under the Civil Procedure Act 2005 (NSW), and the absence of a prior warning did not...

Court Disposition

Application granted; order 3 made on 21 December 2018 varied to require payment of the second defendant's costs on an indemnity basis.

Orders

  • ["I vary order 3 made by me on 21 December 2018 to order that the plaintiff is to pay the second defendant's costs of the motion on an indemnity basis."]