Zisti v Bartter Enterprises Pty Ltd

[2013] NSWCA 146

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Whether indemnity basis of assessment warranted
5. › Whether trial judge acted on incorrect appreciation of facts
6. › House v The King error
7. › Civil Procedure Act 2005 (NSW), s 98
1. Practice and Procedure
2. › Costs
3. › Payment on account of costs
4. › Whether District Court has power to order payment of specified sum on account of costs not yet assessed
5. › Whether order made on wrong principle
6. › Uniform Civil Procedure Rules 2005 (NSW), r 2.1
1. Practice and Procedure
2. › Default judgment
3. › Setting aside
4. › Application dismissed for non-compliance with costs condition
5. › Whether dismissal without consideration of merits made on wrong principle
1. Practice and Procedure
2. › Costs
3. › Duplicate costs orders
4. › Whether later costs order should be set aside where costs of same day already dealt with by earlier order
5. › Corrective jurisdiction

Quick Take

An order requiring payment of a specified sum 'on account of' costs as a condition of proceeding with an application is subject to three constraints: (1) it is unnecessary where costs are already payable forthwith; (2) the quantum must be supported by proper evidence, not merely counsel's relay of a solicitor's figure; and (3) where the order operates as de facto security for costs against a party who is in substance a defendant, the factors relevant to security for costs must be considered, including whether the order would stultify the defence. Dismissal of an application to set aside default judgment solely for non-payment of such a sum, without any consideration of the merits, is an error of principle.