Killen v Rennie & 1 Ors [2006] NSWCA 189

Killen v Rennie & 1 Ors [2006] NSWCA 189

The costs order in Order 3 contained an oversight because the first respondent had not taken any part in the hearing of the appeal beyond submitting an appearance; that oversight was sufficient to attract Rule 36.17 of the Uniform Civil Procedure Rules 2005, so Order 3 was vacated and replaced with an order requiring only the second respondent to pay the costs of the appellant and the first respondent.

Jurisdiction
Australia
Judgment Date
14 July 2006
Procedural Posture
Variation of Order / In Chambers
Outcome
Order 3 made in proceedings No CA 40054/04 and CA 40044/04 by judgment dated 15 November 2005 was vacated and replaced.
Legal Topics
['slip Rule' 'variation of Costs Order' 'suitors Fund Certificate']
['civil Procedure' 'costs'] ['slip Rule' 'variation of Costs Order' 'suitors Fund Certificate']

Case Brief

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Procedural Posture

Variation of Order / In Chambers

Legal Issues

  1. 1 ["Whether Order 3 made by judgment dated 15 November 2005 should be varied because it erroneously required both respondents to pay the appellant's costs." 'Whether the oversight was sufficient to attract the exercise of the slip rule under Rule 36.17 of the Uniform Civil Procedure Rules 2005.']

Ratio Decidendi

The costs order in Order 3 contained an oversight because the first respondent had not taken any part in the hearing of the appeal beyond submitting an appearance; that oversight was sufficient to attract Rule 36.17 of the Uniform Civil Procedure Rules 2005, so Order 3 was vacated and replaced with an order requiring only the second respondent to pay the costs of the appellant and the first respondent.

Court Disposition

Order 3 made in proceedings No CA 40054/04 and CA 40044/04 by judgment dated 15 November 2005 was vacated and replaced.

Orders

  • ['ORDER that Order 3 made in proceedings No CA 40054/04 and CA 40044/04 by judgment dated 15 November 2005, be vacated and replaced with the following order: "The second respondent to pay the costs of the appellant and of the first respondent in this Court and in the court below but to have with respect to the...