PRACTICE & PROCEDURE — summons — dismissal — events overtaken relief sought — proceedings now pointless — UCPR r 13.4 — no reasonable cause of action disclosed against fourth defendant — to continue proceedings is now an abuse of process — deliberate delays — failure to file and serve affidavits — failure to comply with Court orders
AMENDMENT — attempt to convert proceedings commenced on summons into a different cause of action by statement of claim — abuse of process — UCPR r 6.3 — causes of action to be commenced by statement of claim — these proceedings were commenced by summons — amendment refused
COSTS — application for gross sum indemnity costs granted — fourth defendant wrote to the first plaintiff upon receipt of summons requesting discontinuance and warning indemnity costs would be sought
COSTS — costs assessment — cost assessor’s obligations — interaction between Legal Profession Uniform Law Application Act 2014 (NSW) ss 70 and 71 and Legal Profession Uniform Law Application Regulation 2025 (NSW) reg 44 — certificate of costs assessor’s determination only released when costs of assessment are paid (reg 44(2)(ii)) — possible interpretation of s 71 for Assessor or Manager to file Certificate of Determination of fees of assessment if not paid by party determined to be liable to pay — s 71 ambiguous in this respect
Quick Take
1Where the relief sought in a summons has been superseded by events (here, completion of a costs assessment), continuing the proceedings is an abuse of process under UCPR r 13.4, and a party cannot convert proceedings commenced by summons into a different cause of action by seeking leave to file a statement of claim raising entirely new claims.
2Under the Legal Profession Uniform Law Application Regulation 2025 (NSW) reg 44(2)(a)(ii), the Manager, Costs Assessment cannot release a certificate of determination to the parties until the costs of the assessment are paid; the interaction between this regulation and LPULA Act ss 70-71 creates an apparent gap where a party determined liable for the assessor's fees refuses to pay, potentially frustrating the other party's ability to register the determination as a judgment. Whether the Manager or Assessor can file the s 71 certificate as a judgment against the non-paying party was identified as ambiguous and left unresolved.
3A gross sum indemnity costs order is appropriate where a party was unnecessarily joined as a defendant, warned the plaintiff of the lack of any basis for their inclusion and of the intention to seek indemnity costs, and the plaintiff's conduct throughout the litigation demonstrated deliberate delay, non-compliance with court orders, and use of court processes for illegitimate purposes.
