A director who represents a defendant company at trial pursuant to UCPR r 7.1(2)(a) cannot be made subject to a non-party costs order under s 98(1) of the Civil Procedure Act 2005 (NSW) merely by reason of having exercised that right of appearance, even where the company is unsuccessful. Additional factors such as unreasonable or improper conduct, wilful non-compliance with directions, or the director being the real party with a substantial personal financial interest are required. The r 7.2 acknowledgment that the director may be liable for costs does not alter the principles governing the discretion. Separately, a defendant who participates in a hearing for two days waives the right to apply for transfer under s 48L of the Home Building Act 1989 (NSW).
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