The Court ordered that interlocutory costs be payable forthwith under UCPR r 42.7(2), applying the established three-factor test from Fiduciary v Morningstar and Max Build. The Court confirmed that a forthwith costs order need not be sought from the same judge who made the original costs order, nor at the same time as the original order, following Showtime Touring and Stockco Agricapital. On the facts, the plaintiff's pursuit of a summary judgment application filed only four days after the statement of claim, which was ultimately withdrawn and described by the original judge as 'doomed to fail', informed the discretion in favour of the forthwith order, though no formal finding of misconduct was made.
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