Yakmor v Hamdoush (No 2) [2009] NSWCA 284

Yakmor v Hamdoush (No 2) [2009] NSWCA 284

The Court held that the respondent should receive the ordinary costs order for the appeal and that the appellant's tutor should expressly be ordered to pay to the respondent the costs the appellant was ordered to pay. A tutor's liability for costs is an incident of the office of tutor, inherited from the established position of a next friend. Rule 42.3 did not prevent the order because, for costs purposes, a tutor who commences or carries on proceedings for a person under legal incapacity is a party: there is practical identity between tutor and represented party in conduct of the proceedings and legal identity for costs purposes.

Jurisdiction
Australia
Judgment Date
07 October 2009
Procedural Posture
Costs Determination in a Civil Appeal Involving a Party Under Legal Incapacity Appealing by Tutor / After the Appeal Was Dismissed; Costs Determined on Written Submissions
Outcome
Costs orders made in favour of the respondent.
Legal Topics
["tutor's Liability for Costs" 'person Under Legal Incapacity' 'costs Orders Against a Tutor' 'uniform Civil Procedure Rules 2005 R 42.3' 'appeal Costs']
['civil Procedure' 'costs'] ["tutor's Liability for Costs" 'person Under Legal Incapacity' 'costs Orders Against a Tutor' 'uniform Civil Procedure Rules 2005 R 42.3' 'appeal Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Determination in a Civil Appeal Involving a Party Under Legal Incapacity Appealing by Tutor / After the Appeal Was Dismissed; Costs Determined on Written Submissions

Legal Issues

  1. 1 ["Whether the appellant should pay the respondent's costs of the appeal." "Whether the appellant's tutor should be ordered to pay to the respondent the costs the appellant was ordered to pay." 'Whether a tutor is a "party" for the purposes of Uniform Civil Procedure Rules 2005 r 42.3 so that a costs order can be made against the tutor.']

Ratio Decidendi

The Court held that the respondent should receive the ordinary costs order for the appeal and that the appellant's tutor should expressly be ordered to pay to the respondent the costs the appellant was ordered to pay. A tutor's liability for costs is an incident of the office of tutor, inherited from the established position of a next friend. Rule 42.3 did not prevent the order because, for costs purposes, a tutor who commences or carries on proceedings for a person under legal incapacity is a party: there is practical identity between tutor and represented party in conduct of the proceedings and legal identity for costs purposes.

Court Disposition

Costs orders made in favour of the respondent.

Orders

  • ["The appellant pay the respondent's costs of the appeal." "The appellant's tutor pay to the respondent the costs the appellant is ordered to pay."]