Boland v Dillon; Cush v Dillon

[2015] NSWCA 183

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Enforcement of costs orders
4. › Application to prohibit enforcement under s 135 Civil Procedure Act 2005 (NSW)
5. › Whether costs orders made on appeal should be stayed where subsequent re-trial favourable to party against whom costs orders made
6. › Relevance of delay in bringing application
7. › Civil Procedure Act 2005 (NSW), s 135
1. Practice and Procedure
2. › Orders
3. › Enforcement
4. › Merger of lower court orders in appellate court judgment
5. › Whether costs orders of Court of Appeal merged in High Court judgment dismissing appeal
6. › Whether Court of Appeal retains power over its own orders after High Court dismissal
1. Practice and Procedure
2. › Orders
3. › Setting aside and variation
4. › Failure to apply within time under UCPR 36.16(3A)
5. › Whether failure to use available procedural mechanism is discretionary factor against granting alternative relief
6. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)

Quick Take

Where a party succeeds at a re-trial ordered by an appellate court and wishes to challenge costs orders made in the earlier appeal, the party must act promptly and use available procedural mechanisms such as UCPR 36.16(3A) rather than waiting years to bring an application under s 135 of the Civil Procedure Act 2005 (NSW). Unexplained delay of years in bringing such an application will be fatal to the exercise of discretion. The question whether costs orders of the Court of Appeal merge in a High Court judgment dismissing an appeal so as to deprive the Court of Appeal of power over those orders was left open by Gleeson JA and Bergin CJ in Eq, though McColl JA held they do merge.