Griffiths v Ballard [2006] NSWSC 245

New South Wales Supreme Court

CITATION : Griffiths v Ballard [2006] NSWSC 245

HEARING DATE(S) : 22 December 2005, 1 February 2006, 7 March 2006, 21 March 2006

JUDGMENT DATE : 10 April 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Rothman J at 1

DECISION : (a) Appeal allowed in part; (b) The orders of Associate Justice Harrison issued on 25 August 2004 be quashed and in lieu thereof the Court makes orders in the following terms; (i) Leave is granted to the plaintiff to file the Further Amended Statement of Claim attached to the affidavit of John Edmund Michael O'Connor of 26 July 2004; (ii) Proceedings against the first defendant are dismissed; (iii) Paragraphs 16, 29,43 and 44 of the Further Amended Statement of Claim are struck out as are the words "jointly and severally" and "the First and" from paragraph 50 thereof; (c) Leave is granted to file the Second Further Amended Statement of Claim; (d) The application of the second defendant for a stay of proceedings is dismissed; (e) The second defendant shall pay one third of the costs of the plaintiff on the motion before Harrison Assoc J and on appeal, as taxed or agreed.

CATCHWORDS : Costs - practice - stay - shared costs - success of one of two jointly represented co-defendants - leave to file Further Amended Statement of Claim - partial success on appeal and costs - stay of proceedings pending further appeal refused

LEGISLATION CITED : Suitors Fund Act 1951 (NSW) Uniform Civil Procedures

CASES CITED : Griffiths v Ballard [2005] NSWSC 1350 Oshlack v Richmond River Council (1998) 193 CLR 72

Appellant - John Henry GRIFFITHS PARTIES : First Respondent - Peter BALLARD Second Respondent - Commonwealth of Australia Third Defendant - State of New South Wales