Loney v Luthra Group Pty Ltd trading as Sussex Inlet Service Station [2022] NSWDC 350

District Court New South Wales

Medium Neutral Citation: Loney v Luthra Group Pty Ltd trading as Sussex Inlet Service Station [2022] NSWDC 350 Hearing dates: 16 August 2022 Date of orders: 18 August 2022 Decision date: 18 August 2022 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 57 Catchwords: CIVIL PROCEDURE – plaintiff's personal injury claim – injury allegedly suffered when plaintiff used gas pump at service station – defendant's application for deconstruction of nozzle on the gas pump in the possession of a third party – r 23.8 of the Uniform Civil Procedural Rules 2005 (NSW) – application proceeds, then is adjourned to enable the manufacturer to express its opinion on risk of permanent damage to the nozzle on the pump – application subsequently withdrawn by the defendant after manufacturer supplies opinion - whether application might otherwise have failed for discretionary reasons – whether it would have been appropriate for application for deconstruction to be jointly made with the plaintiff COSTS - costs consequences of withdrawal of the application – whether supervening event occurred since filing of motion – whether respondent's conduct wholly or partly disentitled it to any costs order – whether obligations of third parties to 'co-operate' with parties in progress of proceeding Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58, 98 Competition and Consumers Act 2010 (Cth) Uniform Civil Procedure Rules 2005 (NSW) rr 23.8, 42.1 Cases Cited: Calderbank v Calderbank [1976] Fam 93 Category: Costs Parties: Luthra Group Pty Ltd trading as Sussex Inlet Service Station (applicant) Elgas Ltd (respondent) Representation: Counsel: Mr N Simone for the applicant Mr M Best for the respondent