McGettigan v Coulter & Anor; Coulter & Anor v McGettigan (No. 2)

[2021] NSWSC 1356

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. Civil Procedure
2. › Payment out of Court
3. › plaintiffs successful at a trial apply for moneys in Court to be paid out of Court into solicitor’s trust account
4. › defendant files Notice of Intention to Appeal
5. › whether Court approves payment out of Court on term defendant files a Notice of Appeal.
1. Costs
2. › Indemnity costs
3. › successful plaintiffs apply for orders for indemnity costs
4. › the defendant was found to have created and propounded false documents
5. › defendant referred to the Prothonotary for consideration of possible contempt of Court and to the Attorney-General for potential breaches of the Crimes Act 1900
6. › whether defendant demonstrated relevant delinquence as a litigant to warrant an indemnity costs order.
1. Civil Procedure
2. › Costs orders
3. › Gross sum costs order
4. › Civil Procedure Act 2005, s 98(4)(c)
5. › whether a specified gross sum costs order should be made and if so in what sum.

Propounding fabricated documents (including a false will, false partnership/sale agreements and false leases) that significantly prolong proceedings constitutes 'relevant delinquency' warranting indemnity costs under the Degmam/Oshlack/Harrison v Schipp line of authority.
A specified gross sum costs order under Civil Procedure Act 2005 s 98(4)(c) is appropriate where the unsuccessful party is impecunious and the costs of a formal assessment would be unrecoverable, and the court may apply a modest impressionistic discount even where indemnity costs have been ordered.
Where a defendant has filed a Notice of Intention to Appeal, the court may adopt an intermediate course permitting payment out of court funds but restricting their application to estate liabilities and requiring the balance to be held in trust pending appeal.