Mackey v Hunter Valley Gardens Pty Ltd (No.2) [2019] NSWDC 168

Mackey v Hunter Valley Gardens Pty Ltd (No.2) [2019] NSWDC 168

Although the Court had power to consider the Plaintiff's application because the 9 November 2018 costs order was an interlocutory costs order that did not determine a substantive claim for relief, the Plaintiff did not establish exceptional circumstances warranting variation. The vacation of the hearing was attributable to the Plaintiff's late disclosure, late expert evidence and related delay, the Defendant was entitled to maintain forensic options including clarification from Dr Lewin and possible cross-examination of Dr Kaplan, and there was no procedural injustice in leaving the earlier costs order in place.

Jurisdiction
Australia
Judgment Date
09 May 2019
Procedural Posture
Civil Costs Application Following Principal Judgment / On the Papers; Orders After Judgment
Outcome
Judgment entered for the Plaintiff; Plaintiff's application to set aside or vary the 9 November 2018 costs order dismissed; Plaintiff ordered to pay the Defendant's costs of that application.
Legal Topics
['power to Set Aside or Vary Entered Costs Order' 'interlocutory Costs Order' 'costs Thrown Away by Vacation of Hearing Date' 'ordinary Costs and Indemnity Costs' 'case Management Principles']
['civil Procedure' 'costs'] ['power to Set Aside or Vary Entered Costs Order' 'interlocutory Costs Order' 'costs Thrown Away by Vacation of Hearing Date' 'ordinary Costs and Indemnity Costs' 'case Management Principles']

Case Brief

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Procedural Posture

Civil Costs Application Following Principal Judgment / On the Papers; Orders After Judgment

Legal Issues

  1. 1 ['Whether the Court had power under r 36.16(3) of the Uniform Civil Procedure Rules to set aside or vary the costs order made by Letherbarrow DCJ on 9 November 2018.' 'If the Court had power, whether it should vacate the earlier costs order requiring the Plaintiff to pay costs thrown away by vacation of the 14 November 2018 hearing date.']

Ratio Decidendi

Although the Court had power to consider the Plaintiff's application because the 9 November 2018 costs order was an interlocutory costs order that did not determine a substantive claim for relief, the Plaintiff did not establish exceptional circumstances warranting variation. The vacation of the hearing was attributable to the Plaintiff's late disclosure, late expert evidence and related delay, the Defendant was entitled to maintain forensic options including clarification from Dr Lewin and possible cross-examination of Dr Kaplan, and there was no procedural injustice in leaving the earlier costs order in place.

Court Disposition

Judgment entered for the Plaintiff; Plaintiff's application to set aside or vary the 9 November 2018 costs order dismissed; Plaintiff ordered to pay the Defendant's costs of that application.

Orders

  • ['Judgment for the Plaintiff for the sum of $363,243.43.' "Subject to order 3, the Defendant is to pay the Plaintiff's costs up to 24 December 2018 on the ordinary basis and thereafter, the Defendant is to pay the Plaintiff's costs on an indemnity basis." 'The costs order made by Letherbarrow DCJ on 9 November 2018...