McNamara v Bao San & Ors [2010] NSWSC 809

McNamara v Bao San & Ors [2010] NSWSC 809

The Plaintiff did not provide a sufficient reason to depart from the ordinary rule that costs follow the event under UCPR 42.20. There was neither evidence nor a persuasive basis to conclude that the third Defendant was not liable for his legal costs. Therefore, the Plaintiff should pay the third Defendant’s costs, including reserved costs, of the proceedings to the extent they have been dismissed, and also the costs of the hearing on the costs argument, all on the ordinary basis.

Jurisdiction
Australia
Judgment Date
29 July 2010
Procedural Posture
Equity Costs Application / Post Dismissal, Costs Determination
Outcome
Plaintiff to pay third Defendant’s costs, including reserved costs, of the proceedings to the extent dismissed, and the costs of the hearing of the costs argument, calculated on an ordinary basis.
Legal Topics
['costs' 'dismissal of Proceedings' 'indemnity Principle']
['civil Procedure'] ['costs' 'dismissal of Proceedings' 'indemnity Principle']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Equity Costs Application / Post Dismissal, Costs Determination

Legal Issues

  1. 1 ['Who should bear the costs following dismissal of proceedings by consent where no determination on the merits was made?' 'Whether the ordinary position that costs follow the event (UCPR 42.20) should apply or be departed from?' 'Whether the third Defendant is entitled to costs when there is dispute about his liability to pay legal fees?']

Ratio Decidendi

The Plaintiff did not provide a sufficient reason to depart from the ordinary rule that costs follow the event under UCPR 42.20. There was neither evidence nor a persuasive basis to conclude that the third Defendant was not liable for his legal costs. Therefore, the Plaintiff should pay the third Defendant’s costs, including reserved costs, of the proceedings to the extent they have been dismissed, and also the costs of the hearing on the costs argument, all on the ordinary basis.

Court Disposition

Plaintiff to pay third Defendant’s costs, including reserved costs, of the proceedings to the extent dismissed, and the costs of the hearing of the costs argument, calculated on an ordinary basis.

Orders

  • ["Order that the Plaintiff should pay the third Defendant's costs, including reserved costs, of the proceedings, to the extent to which they have been dismissed, such costs to be calculated on the ordinary basis." 'Order the Plaintiff to pay the costs of the third Defendant of the hearing of the costs argument, such...