ULOOLOO PTY LIMITED v DOYLE & DOYLE AS EXECUTORS OF THE ESTATE OF THE LATE HENRY ENDELL DOYLE [1995] NSWCA 477

ULOOLOO PTY LIMITED v DOYLE & DOYLE AS EXECUTORS OF THE ESTATE OF THE LATE HENRY ENDELL DOYLE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, CLARKE JA and COLE JA 30 January 1995

[1995] NSWCA 477

Priestley JA. This is a summons for leave to appeal against costs orders made by Giles J in a case where there were a number of parties.

The applicant for leave was the defendant in the original proceedings. Mr McVay thoroughly canvassed the grounds upon which the court was asked to grant leave to appeal.

Having given some consideration to the matter the court is of the view that, although the matters which Giles J was required to deal with in exercising his discretion as to costs contained some elements of difficulty, there is nothing in the materials before the court or in the arguments put to the court by Mr McVay which shows that Giles J in any way misapprehended the principles upon which he was exercising his discretion as to costs or relevantly misunderstood or failed to take into account any of the factual considerations involved in the exercise of discretion.

Judicial discretion concerning costs orders is a discretion which has always been said by this Court to be one the exercise of which the court will not interfere with unless something clearly has gone wrong below and there has been an unjust result as a consequence.

The court is of the view that nothing so clear as that has been demonstrated in the present case. The summons must, therefore, be dismissed.

There was also a motion for an extension of time. Had the court been of the view that leave to appeal would otherwise have been granted then the extension of time would have been granted. In view of the court's conclusion on the substantial aspect of the case, then it is immaterial really whether any order is made extending the time. Probably the most practical thing to do is to dismiss the motion as well as the summons. In the ordinary course these dismissals would carry costs with them, and the court would propose to dismiss both the summons and the motion with costs, unless anybody wishes to argue about it.