Megna v Marshall [2004] NSWSC 191

Megna v Marshall [2004] NSWSC 191

The costs and expenses recoverable by a person complying with an examination order under Pt 3 r 1 may include reasonable solicitor and counsel costs under Pt 3 r 4, but indemnity costs were not justified because the plaintiff's procedural non-compliance had been dispensed with and did not amount to delinquent, unreasonable or improper conduct.

Jurisdiction
Australia
Judgment Date
19 March 2004
Procedural Posture
Application Concerning an Order for Examination Under Pt 3 R 1 of the Supreme Court Rules / Costs Determination Following Return of Ex Parte Order Requiring Attendance for Examination
Outcome
Indemnity costs refused; plaintiff to pay Mr Tory's costs and expenses on the basis contemplated by Pt 3 rr 3 and 4, including reasonable solicitor and counsel costs.
Legal Topics
['conduct Money' 'expense or Loss Under Supreme Court Rules Pt 3 R 4' 'indemnity Costs' 'compliance With Supreme Court Rules']
['civil Procedure' 'costs'] ['conduct Money' 'expense or Loss Under Supreme Court Rules Pt 3 R 4' 'indemnity Costs' 'compliance With Supreme Court Rules']

Case Brief

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Procedural Posture

Application Concerning an Order for Examination Under Pt 3 R 1 of the Supreme Court Rules / Costs Determination Following Return of Ex Parte Order Requiring Attendance for Examination

Legal Issues

  1. 1 ['Whether the words "expense or loss" in Pt 3 r 4 of the Supreme Court Rules include the costs of retaining a solicitor and/or counsel.' 'Whether indemnity costs should be ordered in favour of Mr Tory.' "Whether the plaintiff's failure to comply with the procedure specified in Pt 3 r 2 justified indemnity costs."]

Ratio Decidendi

The costs and expenses recoverable by a person complying with an examination order under Pt 3 r 1 may include reasonable solicitor and counsel costs under Pt 3 r 4, but indemnity costs were not justified because the plaintiff's procedural non-compliance had been dispensed with and did not amount to delinquent, unreasonable or improper conduct.

Court Disposition

Indemnity costs refused; plaintiff to pay Mr Tory's costs and expenses on the basis contemplated by Pt 3 rr 3 and 4, including reasonable solicitor and counsel costs.

Orders

  • ['The plaintiff, as applicant, is to pay the costs of Mr Tory on the basis contemplated by rr 3 and 4 of Pt 3.' 'The expenses for which Mr Tory is entitled to be reimbursed include the reasonable costs of counsel and solicitor.' "The question of any particular amount referable to Mr Tory's hourly charge can abide...