Marshall v O'Flaherty (Costs) [2023] NSWDC 61

Marshall v O'Flaherty (Costs) [2023] NSWDC 61

The defendant's application was dismissed because, although the plaintiff's need for leave to proceed out of time was a significant indulgence factor and the solicitor's delay was relevant, those matters did not outweigh the defendant's combative opposition to the leave applications, the dismissal of the defendant's own motion, the absence of any new material or error identified, and the weight properly given to the costs order already made by Taylor SC DCJ after hearing the substantive applications.

Jurisdiction
Australia
Judgment Date
17 March 2023
Procedural Posture
Costs Application in Civil Personal Injury Proceedings Arising From a Motor Vehicle Accident / Defendant's Application, Pursuant to Liberty to Apply, to Set Aside or Vary Costs Order Made After Plaintiff Obtained Leave to Commence Proceedings and Leave to Commence Proceedings Out of Time
Outcome
Defendant's application dismissed.
Legal Topics
['costs Discretion' 'indulgence Principle' 'extension of Time' 'leave to Commence Proceedings' 'opposition to Interlocutory Applications' 'liberty to Apply']
['costs' 'civil Procedure' 'personal Injury' 'motor Accidents'] ['costs Discretion' 'indulgence Principle' 'extension of Time' 'leave to Commence Proceedings' 'opposition to Interlocutory Applications' 'liberty to Apply']

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Procedural Posture

Costs Application in Civil Personal Injury Proceedings Arising From a Motor Vehicle Accident / Defendant's Application, Pursuant to Liberty to Apply, to Set Aside or Vary Costs Order Made After Plaintiff Obtained Leave to Commence Proceedings and Leave to Commence Proceedings Out of Time

Legal Issues

  1. 1 ['Whether order (3) made by Taylor SC DCJ on 25 October 2022, that costs be costs in the proceedings, should be set aside or varied.' "Whether the plaintiff's need for an indulgence in obtaining leave to commence proceedings out of time warranted an order that the plaintiff pay the defendant's costs." "What weight should be given to the defendant's combative opposition to the plaintiff's leave applications and to Taylor SC DCJ's proposed costs order."]

Ratio Decidendi

The defendant's application was dismissed because, although the plaintiff's need for leave to proceed out of time was a significant indulgence factor and the solicitor's delay was relevant, those matters did not outweigh the defendant's combative opposition to the leave applications, the dismissal of the defendant's own motion, the absence of any new material or error identified, and the weight properly given to the costs order already made by Taylor SC DCJ after hearing the substantive applications.

Court Disposition

Defendant's application dismissed.

Orders

  • ["Defendant's application to set aside order (3) of the orders made by Taylor SC DCJ on 25 October 2022 is dismissed." 'The costs of this application are to be included in the costs order of 25 October 2022 when these costs come to be agreed or assessed.']