Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd & Ors; Allianz Australia Insurance Limited v SST Consulting Pty Ltd & Ors; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors; Rickard Hails Moretti Pty Ltd v SST Consulting Pty Ltd & Ors

[2008] NSWCA 283

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Costs orders against non-parties
4. › Whether non-party who funded litigation by insolvent plaintiff without indemnity against adverse costs orders committed abuse of process
5. › Whether 'real party' jurisdiction abolished by rules
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.3(2)(c)
7. › Civil Procedure Act 2005 (NSW), s 98
1. Practice and Procedure
2. › Costs
3. › Costs orders against non-parties
4. › Meaning of 'abuse of process' in UCPR r 42.3(2)(c)
5. › Whether requires actual committed abuse or prospective tendency to abuse
6. › Whether categories of abuse of process closed
1. Practice and Procedure
2. › Abuse of process
3. › Litigation funding
4. › Whether funding of proceedings by non-party with commercial interest without indemnity constitutes abuse of process
5. › Whether control of litigation by funder necessary
6. › Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41
1. Practice and Procedure
2. › Abuse of process
3. › Trafficking in actions
4. › Whether funding insolvent plaintiff to sue on ineffectively assigned causes of action constitutes abuse of process

Quick Take

In NSW, a costs order against a non-party under UCPR Rule 42.3(2)(c) requires proof that the non-party actually committed an abuse of process; the 'real party' jurisdiction from Knight v FP Special Assets Ltd is no longer available. Mere litigation funding by a non-party with a commercial interest, even without an indemnity against adverse costs orders and even where the plaintiff is insolvent, does not constitute an abuse of process. Authorities from jurisdictions without equivalent rule restrictions (such as Dymocks and Life Therapeutics) are of no assistance in NSW.