COSHCOTT v DOWNS & SOUTHERN CROSS HOMES PTY LTD [1993] NSWCA 76

COSHCOTT v DOWNS & SOUTHERN CROSS HOMES PTY LTD SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

CLARKE JA 13 December 1993

[1993] NSWCA 76

Clarke JA. I refuse the application.

I order the plaintiff, Mr Coshcott, to pay the respondent's costs of the application on an indemnity basis excluding the costs of 29 November 1993.

I order that the hearing be expedited.

I order that Mr Coshcott file and serve all affidavits on which he wishes to rely by 15 January and that Southern Cross Homes file and serve any affidavits on which it wishes to rely by 31 January and I will place the matter in the first callover list next year.

The formal order is that the application be dismissed. The opponent, Robert Coshcott, is to pay the claimant, Southern Cross Homes, the costs of the present application excluding the costs of 29 November 1993 on an indemnity basis. I have made the costs order on an indemnity basis because, in my opinion, Mr Coshcott has been seriously delinquent in failing to prosecute these proceedings which were transferred to the Court of Appeal in December 1989.

Iam aware that he sold his practice at a later date and has not been practising as a solicitor for some time now. Notwithstanding that he did not give proper instructions to the solicitors now acting for him until very recently andhimself took no steps in the matter. Bearing in mind that he was an officer of the Court I think he has fallen down in his duty to a significant degree and because of his delinquency I think that more than a normal costs order should be made and I think the claimant should not be out of pocket in respect of the present application except for the mention on 29 November and therefore the only proper order to make is an indemnity costs order.

I will expedite the hearing in the light of all the circumstances and the problem surrounding proceedings presently before the District Court.