Guha v Guha [2020] NSWSC 1337

Guha v Guha [2020] NSWSC 1337

The NSW Trustee was joined as a defendant without proper basis, as no substantive relief was sought against it. Its removal as a party was appropriate, and the general rule applies that the plaintiff (and her tutor) must pay the NSW Trustee's costs incurred from their unnecessary joinder and subsequent delay in removal. However, given the circumstances, including the plaintiff being a legally protected person and having limited means, indemnity costs are not warranted and the costs are to be ordered on the ordinary basis, fixed as a lump sum and payable forthwith, with the tutor personally liable for a portion of the costs. Costs orders are subject to confirmation of legal aid grant dates.

Jurisdiction
Australia
Judgment Date
01 October 2020
Procedural Posture
Civil / Costs Determination Following Removal of a Party
Outcome
Plaintiff and plaintiff's tutor ordered to pay the NSW Trustee's costs up to 30 June 2020 on the ordinary basis, fixed at $3,200 jointly and severally; plaintiff's tutor to pay further specified costs personally; plaintiff's tutor to pay costs of the notice of motion; directions made for confirmation of legal aid...
Legal Topics
['costs' 'unnecessary Joinder of Party' 'costs Orders Against Legally Assisted Persons' "tutor's Personal Liability for Costs" 'party/party Costs' 'gross Sum Costs']
['equity'] ['costs' 'unnecessary Joinder of Party' 'costs Orders Against Legally Assisted Persons' "tutor's Personal Liability for Costs" 'party/party Costs' 'gross Sum Costs']

Case Brief

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Procedural Posture

Civil / Costs Determination Following Removal of a Party

Legal Issues

  1. 1 ['Whether the NSW Trustee and Guardian should have been joined as a party to the proceedings' "Who should bear the costs associated with the NSW Trustee's involvement and removal from the proceedings" 'Whether any costs order should be made on an indemnity or ordinary basis' 'Whether costs should be fixed as a lump sum and ordered payable forthwith' 'Personal liability of tutor for costs' 'Effect of legal aid on costs orders']

Ratio Decidendi

The NSW Trustee was joined as a defendant without proper basis, as no substantive relief was sought against it. Its removal as a party was appropriate, and the general rule applies that the plaintiff (and her tutor) must pay the NSW Trustee's costs incurred from their unnecessary joinder and subsequent delay in removal. However, given the circumstances, including the plaintiff being a legally protected person and having limited means, indemnity costs are not warranted and the costs are to be ordered on the ordinary basis, fixed as a lump sum and payable forthwith, with the tutor personally liable for a portion of the costs. Costs orders are subject to confirmation of legal aid grant dates.

Court Disposition

Plaintiff and plaintiff's tutor ordered to pay the NSW Trustee's costs up to 30 June 2020 on the ordinary basis, fixed at $3,200 jointly and severally; plaintiff's tutor to pay further specified costs personally; plaintiff's tutor to pay costs of the notice of motion; directions made for confirmation of legal aid...

Orders

  • ['Plaintiff to provide to the NSW Trustee, within 7 days, documents confirming legal aid grant dates for plaintiff and tutor relevant to the proceedings and the notice of motion.' "Plaintiff and her tutor jointly and severally to pay the NSW Trustee's costs (excluding costs of notice of motion filed 22 July 2020) up...