Karabay v Carr [2011] NSWSC 365

Karabay v Carr [2011] NSWSC 365

Although the plaintiff's own lack of readiness required an adjournment application shortly before the hearing, the first defendant ought to have disclosed much earlier that he was an undischarged bankrupt. That disclosure would in all likelihood have required an application for leave to proceed and would have led to the hearing being vacated in any event. Because the parties' competing contentions had equal or comparable force, the costs thrown away or occasioned by the vacated hearing should be costs in the cause.

Jurisdiction
Australia
Judgment Date
03 May 2011
Procedural Posture
Procedural Ruling on Costs in Professional Negligence Proceedings / Costs Thrown Away or Occasioned by Vacated Final Hearing
Outcome
Costs thrown away or occasioned by reason of the vacated hearing ordered to be costs in the cause.
Legal Topics
['application to Vacate Hearing' 'costs Thrown Away by Adjournment' 'undischarged Bankrupt Defendant' 'leave to Proceed Under Bankruptcy Act 1966']
['civil Procedure' 'costs' 'bankruptcy' 'professional Negligence'] ['application to Vacate Hearing' 'costs Thrown Away by Adjournment' 'undischarged Bankrupt Defendant' 'leave to Proceed Under Bankruptcy Act 1966']

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Procedural Posture

Procedural Ruling on Costs in Professional Negligence Proceedings / Costs Thrown Away or Occasioned by Vacated Final Hearing

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendants' costs thrown away or occasioned by the vacated hearing where the adjournment application was caused by the plaintiff's lack of readiness." "Whether the first defendant's undisclosed status as an undischarged bankrupt would in any event have required an application for leave to proceed and caused the hearing to be vacated." 'Whether the appropriate order was that the costs be paid by the plaintiff, borne by each party, subject to no order, or be costs in the cause.']

Ratio Decidendi

Although the plaintiff's own lack of readiness required an adjournment application shortly before the hearing, the first defendant ought to have disclosed much earlier that he was an undischarged bankrupt. That disclosure would in all likelihood have required an application for leave to proceed and would have led to the hearing being vacated in any event. Because the parties' competing contentions had equal or comparable force, the costs thrown away or occasioned by the vacated hearing should be costs in the cause.

Court Disposition

Costs thrown away or occasioned by reason of the vacated hearing ordered to be costs in the cause.

Orders

  • ['Order that the costs thrown away or occasioned by reason of the vacated hearing should be costs in the cause.']