Madsen v Darmali (No 2) [2024] NSWSC 268

Supreme Court New South Wales

Medium Neutral Citation: Madsen v Darmali (No 2) [2024] NSWSC 268 Hearing dates: On the papers; last submission received 15 March 2024. Date of orders: 19 March 2024 Decision date: 19 March 2024 Jurisdiction: Equity - Expedition List Before: Rees J Decision: Costs of application to set aside ex parte orders payable forthwith Catchwords: COSTS – ex parte orders set aside for lack of candour – proceedings expedited given plaintiff's terminal illness – some evidence that plaintiff had divested himself of assets – plaintiff's claim being reformulated. PAYABLE FORTHWITH – r 42.7 Uniform Civil Procedure Rules 2005 (NSW) – court's discretion to "order otherwise" – principles at [2]-[7] – motion concerned a discrete matter – existence of some unreasonable conduct – some distance to go in the litigation – no evidence that a 'forthwith' costs orders would stultify the proceedings – defendants ought nor bear credit risk associated with plaintiff's asset divestiture – payment of costs order should be finalised given plaintiff's terminal illness and likelihood of additional disruption to the litigation. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 42.7 Cases Cited: Australiawide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365 Bradman v Allens Arthur Robinson (No 2) [2009] SASC 180 Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Madsen v Darmali [2024] NSWSC 76 Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 Richards v Kadian (No 2) [2005] NSWCA 373 Royal Australian Naval Reserve Rifle Club Inc v New South Wales Rifle Association Inc [2010] NSWSC 351 W Hoy Pty Ltd v WTH Pty Ltd (No 2) [2018] FCA 506 Texts Cited: G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis) at [14.51], [14.52] Category: Costs Parties: Benny Madsen (Plaintiff) David Darmali (First Defendant) Chu Li (Second Defendant) Representation: Counsel: Mr A Cheshire SC / Mr JD Cook (Plaintiff) Mr MA Friedgut (First and Second Defendants)