CIVIL PROCEDURE — application for leave to discontinue proceedings — whether plaintiff should be ordered to pay defendant’s costs pursuant to r 42.19(2) of the Uniform Civil Procedure Rules 2005 (NSW) — where defendant has not taken an active role in the proceedings — no issue of principle
Quick Take
1Where a plaintiff seeks to discontinue proceedings under UCPR r 12.1(1)(b), the default position under r 42.19(2) is that the plaintiff must pay the defendant's costs, but this may be displaced where there is a sound positive ground or good reason for departing from the ordinary course.
2Supervening events rendering further prosecution of proceedings otiose — such as the defendant's acquittal of the underlying criminal charges in criminal assets recovery proceedings — combined with the plaintiff's reasonable conduct and the defendant's failure to engage or incur demonstrable costs, can together justify an order that each party bear its own costs on discontinuance.
