Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146

Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146

Order requiring payment on account of costs by the defendant was made on a wrong principle and without proper power in the District Court; the orders relating to costs assessment on an indemnity basis for 9 December 2011 and inclusion of 30 September 2011 costs were made in error; dismissal of the defendant's application occurred without consideration of the merits and should be set aside.

Parties
Appellant: Terry Zisti; Respondent: Bartter Enterprises Pty Ltd
Jurisdiction
Australia
Judgment Date
06 June 2013
Procedural Posture
Appeal / Judgment on Appeal From District Court Orders Regarding Costs and Setting Aside Default Judgment
Outcome
Appeal allowed
Legal Topics
Costs, Default Judgment, Application to Set Aside Judgment, Security for Costs, Assessment of Costs
Civil Procedure Costs Default Judgment Application to Set Aside Judgment Security for Costs Assessment of Costs

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Parties

Terry Zisti

Appellant

Bartter Enterprises Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment on Appeal From District Court Orders Regarding Costs and Setting Aside Default Judgment

Legal Issues

  1. 1 Whether costs of 30 September 2011 were improperly included in later costs order
  2. 2 Whether assessment on indemnity basis was warranted for certain adjourned hearings
  3. 3 Whether District Court had power to order payment on account of costs as condition of proceeding with motion

Ratio Decidendi

Order requiring payment on account of costs by the defendant was made on a wrong principle and without proper power in the District Court; the orders relating to costs assessment on an indemnity basis for 9 December 2011 and inclusion of 30 September 2011 costs were made in error; dismissal of the defendant's application occurred without consideration of the merits and should be set aside.

Court Disposition

Appeal allowed

Orders

  • Vary Order 3 made by the District Court on 23 January 2012 by omitting '30 September 2011,', omitting the words 'such costs to be paid as agreed or assessed on the indemnity basis forthwith' and substituting 'such costs to be as agreed or assessed on the indemnity basis in the case of the costs of 17 November 2011...
  • Set aside Order 4 made by the District Court on 23 January 2012.