Kieran Leslie Welzel & Anor v Stephen Paul Francis [2010] NSWSC 75

Kieran Leslie Welzel & Anor v Stephen Paul Francis [2010] NSWSC 75

If Practice Note SCEQ3 paragraph 57 and r 42.7 of the UCPR cannot be made consistent, r 42.7 has primacy. Although assessment and enforceability are distinct, the first plaintiff established entitlement to the alternative order restraining enforcement of any assessment of the 28 August 2009 costs unless and until otherwise ordered.

Jurisdiction
Australia
Judgment Date
12 February 2010
Procedural Posture
Equity Division Commercial List Proceedings; Amended Notice of Motion Concerning Costs Assessment and Enforcement / Interlocutory Procedural Ruling, Ex Tempore Judgment
Outcome
Application granted in part; alternative order restraining enforcement made, with costs to the first plaintiff.
Legal Topics
['practice Notes' 'uniform Civil Procedure Rules' 'interlocutory Costs' 'costs Assessment' 'enforcement of Costs Orders']
['civil Procedure' 'costs'] ['practice Notes' 'uniform Civil Procedure Rules' 'interlocutory Costs' 'costs Assessment' 'enforcement of Costs Orders']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceedings; Amended Notice of Motion Concerning Costs Assessment and Enforcement / Interlocutory Procedural Ruling, Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the defendant should be restrained from proceeding to an assessment of costs ordered by consent on 28 August 2009 until the conclusion of the proceedings.' 'Whether, pursuant to Pt 42 r 7(2) of the Uniform Civil Procedure Rules 2005 (NSW), the defendant should take no step to enforce any assessment of those costs until the conclusion of the proceedings or until further order.' 'Whether Practice Note SCEQ3 paragraph 57 could displace or prevail over r 42.7 of the UCPR in relation to enforceability of interlocutory costs.']

Ratio Decidendi

If Practice Note SCEQ3 paragraph 57 and r 42.7 of the UCPR cannot be made consistent, r 42.7 has primacy. Although assessment and enforceability are distinct, the first plaintiff established entitlement to the alternative order restraining enforcement of any assessment of the 28 August 2009 costs unless and until otherwise ordered.

Court Disposition

Application granted in part; alternative order restraining enforcement made, with costs to the first plaintiff.

Orders

  • ['The defendant take no step to enforce any assessment of the costs made by consent on 28 August 2009 unless and until otherwise ordered.' "The defendant pay the first plaintiffs' costs of the application."]