SAS Trustee Corporation v Arthur Cox (No 2) [2012] NSWCA 9

SAS Trustee Corporation v Arthur Cox (No 2) [2012] NSWCA 9

Since the notice of motion for a certificate under the Suitor's Fund Act 1951 was filed within 14 days after the orders were entered, the Court may vary its previous orders and grant the certificate. However, as the application could have been made during submissions, the respondent should pay the costs of the motion.

Parties
Appellant: SAS Trustee Corporation; Respondent: Arthur Cox
Jurisdiction
Australia
Judgment Date
13 February 2012
Procedural Posture
Appeal / Post Judgment Orders (variation/modification of Earlier Orders)
Outcome
Orders varied; respondent granted certificate under Suitor's Fund Act 1951 if qualified; respondent to pay costs of appeal and of notice of motion.
Legal Topics
Costs, Suitor's Fund Act Certificate, Variation of Orders
Civil Procedure Costs Suitor's Fund Act Certificate Variation of Orders

Case Brief

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Parties

SAS Trustee Corporation

Appellant

Arthur Cox

Respondent

Procedural Posture

Appeal / Post Judgment Orders (variation/modification of Earlier Orders)

Legal Issues

  1. 1 Should the respondent be granted a certificate under the Suitor's Fund Act 1951?
  2. 2 How should costs be apportioned for the notice of motion seeking the certificate?

Ratio Decidendi

Since the notice of motion for a certificate under the Suitor's Fund Act 1951 was filed within 14 days after the orders were entered, the Court may vary its previous orders and grant the certificate. However, as the application could have been made during submissions, the respondent should pay the costs of the motion.

Court Disposition

Orders varied; respondent granted certificate under Suitor's Fund Act 1951 if qualified; respondent to pay costs of appeal and of notice of motion.

Orders

  • Order 4 varied: Respondent to pay the costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.
  • Respondent to pay the costs of the notice of motion filed on 23 December 2011.