Xiang v Ward (No 4) [2016] NSWDC 167

Xiang v Ward (No 4) [2016] NSWDC 167

Although the proposed stay application had a proper foundation and reasonable prospects, the defendant did not pursue it and was therefore unsuccessful in the relevant event; those circumstances did not displace the ordinary rule under r 42.1, so the defendant was ordered to pay the plaintiff's costs of and incidental to the hearing.

Jurisdiction
Australia
Judgment Date
29 June 2016
Procedural Posture
Civil Costs Ruling / Hearing Concerning Foreshadowed Application for a Stay, Which Was Not Filed and Was Not Pursued
Outcome
The proposed notice of motion for a stay was noted as not filed and not intended to be pursued, and the defendant was ordered to pay the plaintiff's costs of and incidental to the hearing.
Legal Topics
['application for a Stay' 'abandoned Application' 'costs Following the Event' 'uniform Civil Procedure Rules 2005, R 42.1']
['civil Procedure' 'costs'] ['application for a Stay' 'abandoned Application' 'costs Following the Event' 'uniform Civil Procedure Rules 2005, R 42.1']

Case Brief

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Procedural Posture

Civil Costs Ruling / Hearing Concerning Foreshadowed Application for a Stay, Which Was Not Filed and Was Not Pursued

Legal Issues

  1. 1 ["Whether the Court should make any order in relation to the defendant's proposed notice of motion for a stay that had not been filed and was not pursued." "Whether the defendant should pay the plaintiff's costs of and incidental to the hearing after abandoning the proposed stay application."]

Ratio Decidendi

Although the proposed stay application had a proper foundation and reasonable prospects, the defendant did not pursue it and was therefore unsuccessful in the relevant event; those circumstances did not displace the ordinary rule under r 42.1, so the defendant was ordered to pay the plaintiff's costs of and incidental to the hearing.

Court Disposition

The proposed notice of motion for a stay was noted as not filed and not intended to be pursued, and the defendant was ordered to pay the plaintiff's costs of and incidental to the hearing.

Orders

  • ["Note that the defendant's proposed notice of motion in regards to a stay has not been filed and is not intended to be pursued." "Order the defendant pay the plaintiff's costs of and incidental to the hearing before me today."]