Dean v Phung (No 2) [2013] NSWSC 116

Dean v Phung (No 2) [2013] NSWSC 116

The appropriate exercise of the costs discretion was that each party bear his own costs of the amendment application because the plaintiff sought an indulgence in circumstances where aspects of the claim had been pleaded earlier and the amendment was not inappropriately opposed, but the plaintiff ultimately...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
25 February 2013
Procedural Posture
Notice of Motion in Tort Personal Injury Proceedings Concerning Costs and Interest on Costs / Post Judgment Application for Costs of Amendment and Interest on Costs
Outcome
Notice of Motion determined with no order shifting costs of the amendment application, interest on the prior costs order awarded to the plaintiff, and each party to bear his own costs of the Notice of Motion.
Legal Topics
['dental Injuries' 'application to Amend Statement of Claim' 'interest on Costs' 'costs Discretion']
['tort' 'personal Injury' 'costs'] ['dental Injuries' 'application to Amend Statement of Claim' 'interest on Costs' 'costs Discretion']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Notice of Motion in Tort Personal Injury Proceedings Concerning Costs and Interest on Costs / Post Judgment Application for Costs of Amendment and Interest on Costs

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiff's costs of the plaintiff's application to amend his Statement of Claim heard on 14 October 2010." 'Whether the defendant should pay interest under s 101 of the Civil Procedure Act 2005 on costs ordered by Hislop J on 30 June 2011 from 3 August 2011 until payment.' 'What costs order should be made for the Notice of Motion filed on 25 October 2012.']

Ratio Decidendi

The appropriate exercise of the costs discretion was that each party bear his own costs of the amendment application because the plaintiff sought an indulgence in circumstances where aspects of the claim had been pleaded earlier and the amendment was not inappropriately opposed, but the plaintiff ultimately succeeded in the Court of Appeal on the pleading as pressed. Interest on the prior costs order was appropriate because the plaintiff had been out of pocket since 3 August 2011, interest on costs is compensatory, no special case was required, and the defendant's impecuniosity, self-representation, and uncertainty about insurance did not justify refusing interest. Because both parties...

Court Disposition

Notice of Motion determined with no order shifting costs of the amendment application, interest on the prior costs order awarded to the plaintiff, and each party to bear his own costs of the Notice of Motion.

Orders

  • ["Each party to bear his own costs of the plaintiff's application to amend his Statement of Claim, heard by Deputy Registrar Howard on 14 October 2010." 'The defendant pay the plaintiff interest, at the rate prescribed by s 101 of the Civil Procedure Act 2005, on the costs the subject of the costs order of Hislop J...