Yu v Cao

(2015) 91 NSWLR 190; [2015] NSWCA 276

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Non-party costs orders
4. › Discretion under s 98(1)(b) Civil Procedure Act 2005 (NSW)
5. › Principles governing exercise of discretion
6. › Whether exceptional circumstances existed
7. › Whether applicant had cause of action against non-party and could have joined as party
8. › Whether primary judge failed to consider material circumstances
9. › Civil Procedure Act 2005 (NSW), s 98(1)(b)
1. Practice and Procedure
2. › Costs
3. › Non-party costs orders
4. › Causation
5. › Whether non-party's conduct caused the litigation
6. › Whether intervening conduct of solicitor broke chain of causation
7. › Whether applicant was deceived by non-party's conduct
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary costs order
4. › Whether error demonstrated in House v The King sense
5. › Whether primary judge failed to take into account material considerations
6. › Whether findings not open on the evidence
7. › Supreme Court Act 1970 (NSW), s 101(2)(c)

Quick Take

A non-party costs order under s 98(1)(b) of the Civil Procedure Act 2005 (NSW) will be more exceptional where the applicant had a cause of action against the non-party and could have joined them as a party to the original proceedings. A court exercising the non-party costs discretion must consider all circumstances including why the non-party was not joined, not merely the circumstances at the commencement of proceedings. The summary nature of costs applications heightens the necessity to ensure departures from fundamental principle do not wreak injustice.