Walton v Commonwealth Bank of Australia

[2020] NSWCA 191

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discontinuance
3. › Costs on discontinuance
4. › Usual rule that discontinuing party pay defendant's costs
5. › Power to order otherwise
6. › Whether proceedings lacking practical utility justified departure from usual costs rule
7. › Uniform Civil Procedure Rules 2005 (NSW), r 12.1, r 42.19(2)
1. Costs
2. › Discontinuance
3. › Departure from usual rule
4. › Onus on discontinuing party to justify departure
5. › Proceedings rendered futile
6. › Both parties impecunious
7. › Litigation feeding on itself
8. › Uniform Civil Procedure Rules 2005 (NSW), r 42.19(2)
9. › Civil Procedure Act 2005 (NSW), Pt 6
1. Appeal
2. › Leave to appeal
3. › Costs orders
4. › Whether issue of principle or injustice demonstrated
5. › Supreme Court Act 1970 (NSW), s 101(2)(c)

Quick Take

The Court held that where proceedings become objectively futile for both parties, a discontinuing plaintiff may obtain a 'no costs' order under UCPR r 42.19(2), particularly where continuation would amount to satellite litigation over costs alone.