Highland v Labraga (No 3) [2006] NSWSC 871

Highland v Labraga (No 3) [2006] NSWSC 871

The guideline that a submitting party is generally or ordinarily immune from costs is not absolute. In this case the proceedings formed part of a series of related disputes involving the same persons, and the first defendant did more than genuinely take no part: he took an active role in related proceedings and, even in these proceedings, filed a submitting appearance but obtained leave to file a defence and argued beyond what was usual for a submitting defendant. The earlier order that the first defendant pay the plaintiffs' costs should therefore not be adjusted.

Jurisdiction
Australia
Judgment Date
31 August 2006
Procedural Posture
Notice of Motion Under Uniform Civil Procedure Act 2005, Pt 36 R17 to Vary or Set Aside a Costs Order in Proceedings to Remove an Executor / Motion After Earlier Costs Judgment
Outcome
Motion dismissed with costs.
Legal Topics
['slip Rule' 'submitting Appearance' 'costs Liability of Submitting Party' 'removal of Executor' 'amendment of Proceedings']
['civil Procedure' 'equity' 'costs' 'succession'] ['slip Rule' 'submitting Appearance' 'costs Liability of Submitting Party' 'removal of Executor' 'amendment of Proceedings']

Case Brief

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Procedural Posture

Notice of Motion Under Uniform Civil Procedure Act 2005, Pt 36 R17 to Vary or Set Aside a Costs Order in Proceedings to Remove an Executor / Motion After Earlier Costs Judgment

Legal Issues

  1. 1 ["Whether the costs order requiring the first defendant to pay the plaintiffs' costs should be varied or set aside under the slip rule." 'Whether a defendant who filed a submitting appearance was immune from liability for costs incurred after filing that appearance.' 'Whether the first defendant should recover costs of the amendment made on 6 June 2005 and costs thrown away by that amendment.']

Ratio Decidendi

The guideline that a submitting party is generally or ordinarily immune from costs is not absolute. In this case the proceedings formed part of a series of related disputes involving the same persons, and the first defendant did more than genuinely take no part: he took an active role in related proceedings and, even in these proceedings, filed a submitting appearance but obtained leave to file a defence and argued beyond what was usual for a submitting defendant. The earlier order that the first defendant pay the plaintiffs' costs should therefore not be adjusted.

Court Disposition

Motion dismissed with costs.

Orders

  • ["The first defendant's notice of motion is dismissed with costs." 'The exhibits should be retained.']