Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 21

Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 21

The stay was refused because, even allowing for the asserted gap before suspension under s 377, there was no evidence that the respondents intended to enforce the costs order, no suggestion that they would be unable or unwilling to repay if the appeal succeeded, and no evidence that the applicant was impecunious or would suffer real prejudice by payment. The respondents' undertaking to provide seven days' notice before enforcement gave further protection. The applicant was ordered to pay the costs of the failed motion, but not the costs of Mr Beattie's late and immaterial affidavit.

Jurisdiction
Australia
Judgment Date
16 February 2015
Procedural Posture
Application for Stay of Execution of Costs Order Pending Appeal / Notice of Motion in the Court of Appeal
Outcome
Applicant's motion dismissed; applicant ordered to pay respondents' costs of the motion except costs of Mr Beattie's affidavit dated 16 February 2015.
Legal Topics
['stay of Costs Order Pending Appeal' 'costs Assessment Review' 'enforcement of Costs Order' 'costs of Motion']
['practice and Procedure' 'costs'] ['stay of Costs Order Pending Appeal' 'costs Assessment Review' 'enforcement of Costs Order' 'costs of Motion']

Case Brief

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Procedural Posture

Application for Stay of Execution of Costs Order Pending Appeal / Notice of Motion in the Court of Appeal

Legal Issues

  1. 1 ['Whether execution of the District Court costs order should be stayed pending appeal and pending review of the costs assessment.' "Whether the applicant should pay the respondents' costs of the motion, including costs associated with a late affidavit."]

Ratio Decidendi

The stay was refused because, even allowing for the asserted gap before suspension under s 377, there was no evidence that the respondents intended to enforce the costs order, no suggestion that they would be unable or unwilling to repay if the appeal succeeded, and no evidence that the applicant was impecunious or would suffer real prejudice by payment. The respondents' undertaking to provide seven days' notice before enforcement gave further protection. The applicant was ordered to pay the costs of the failed motion, but not the costs of Mr Beattie's late and immaterial affidavit.

Court Disposition

Applicant's motion dismissed; applicant ordered to pay respondents' costs of the motion except costs of Mr Beattie's affidavit dated 16 February 2015.

Orders

  • ["Dismiss the applicant's motion filed on 5 February 2015." "Order that the applicant pay the respondents' costs of the motion other than the costs of the affidavit of Mr Beattie dated 16 February 2015."]