HARDING v THE UNIVERSITY OF NEW SOUTH WALES [1997] NSWCA 136

HARDING v THE UNIVERSITY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 21 April 1997

[1997] NSWCA 136

Registrar Jupp. In this matter the Respondent, The University of New South Wales, filed a notice of motion on 18 February 1997 seeking an order that monies paid by the Opponent as security for the Claimant's cost of the appeal be released forthwith to the Claimant in part payment of its judgment for assessed costs of $10,211.04. That motion was originally returnable before me on 3 March 1997. It was adjourned to 7 April 1997 and on 7 April it was further adjourned to today.

On 3 March 1997, the matter was mentioned on behalf of the Opponent and it was indicated to the Court that the application would be opposed, the costs of that day were reserved.

On 7 April 1997 Ms Harding appeared in person to oppose the application. On that occasion, it was noted that she was appearing in person and had short notice of this application and was not in a position on that occasion to properly reply to the evidence that had been filed by the Claimant. It was adjourned until today so that the Opponenthad an opportunity to file an affidavit putting on as much evidence as was necessary to respond to the Claimant's evidence.

In support of the application, Mr Murphy read his affidavit which deposed to the fact that the money had been paid into court as security for the cost of the appeal, that on 13 December 1993 the Court of Appeal dismissed the appeal and ordered the Appellant to pay the Respondent's costs and that a judgment had been obtained in the Common Law Division in favour of the Respondent against the Appellant in the sum of $10,211.04 (for the costs of the appeal).

The Opponent's affidavit sworn on 14 April 1997 includes a lot of material which is really in the nature of the Opponent's submissions on the motion. One of the bases that the Opponent is opposing the motion is that the judgment obtained for the cost of the Court of Appeal proceedings was obtained irregularly. The bill of cost in respect of the Court of Appeal proceedings was apparently served in March 1996. The application for the assessment of those costs was filed on 29 July 1996 and the assessment of the costs was concluded on 23 September 1996.