Cameron v Ofria & Ors.

[2007] NSWCA 37

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Interlocutory applications
4. › Order for costs to be paid before conclusion of proceedings
5. › Whether appropriate to make such order
6. › Whether trial judge erred in exercising discretion
7. › Discretion exercised for penal purposes
8. › Failure to consider affidavit material
1. Practice and Procedure
2. › Costs
3. › Principles governing costs orders
4. › Costs as indemnity not punishment
5. › Whether costs may be awarded by way of penalty

Quick Take

A trial judge's order preventing a party from obtaining a trial date until interlocutory costs are paid will be set aside where the order was made for penal purposes or where the judge failed to consider relevant evidence of the party's financial position. The recognised categories for ordering costs before conclusion of proceedings (per Fiduciary v Morningstar) do not extend to ordinary interlocutory applications where the unsuccessful conduct was not unreasonable.