Nolan v Otis Elevator Company Pty Limited [2008] NSWCA 196

New South Wales Court of Appeal

CITATION: Nolan v Otis Elevator Company Pty Limited [2008] NSWCA 196

HEARING DATE(S): 11 August 2008 JUDGMENT OF: Allsop P at 1; Bell JA at 9; Handley AJA at 2

EX TEMPORE JUDGMENT DATE: 11 August 2008

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: COSTS - leave to appeal - burden on claimant - no question of principle

LEGISLATION CITED: Supreme Court Act 1970

CATEGORY: Principal judgment

PARTIES: John Nolan (Applicant) Otis Elevator Company Pty Limited (Respondent)

FILE NUMBER(S): CA 40785/07

COUNSEL: G O Blake SC (Applicant) A F Moses/Y Shariff (Respondent)

SOLICITORS: Toomey Pegg Drevikovsky (Applicant) Mallesons Stephen Jaques (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 2832/07

LOWER COURT JUDICIAL OFFICER: Windeyer J

LOWER COURT DATE OF DECISION: 16 October 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40785/07 SC 2832/07

ALLSOP P BELL JA HANDLEY AJA

MONDAY 11 AUGUST 2008 JOHN NOLAN v OTIS ELEVATOR COMPANY PTY LIMITED Judgment 1 ALLSOP P: I will ask Justice Handley to deliver the first judgment. 2 HANDLEY AJA : This is an application for leave to appeal from a costs order made by Windeyer J when granting leave to a plaintiff to discontinue proceedings in the Equity Division. The opponent, the plaintiff below, failed to obtain an interlocutory injunction from Brereton J to restrain the claimant from committing a breach of a restraint of trade clause in his employment contract. 3 Brereton J made an order that the defendant's costs of the motion be his costs in the cause. The restraint was only for six months and the refusal of the interlocutory injunction deprived the proceedings of any further useful purpose. In due course, the plaintiff filed an application for leave to discontinue which enlivened the court's power under the rules to deal with the costs of the proceedings.