White v Lachlan Shire Council (No 2) [2017] NSWDC 142

District Court New South Wales

Medium Neutral Citation: White v Lachlan Shire Council (No 2) [2017] NSWDC 142 Hearing dates: 9 June 2017 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to s 98(3) of the Civil Procedure Act 2005, the plaintiff is ordered to pay the defendant's wasted costs incurred consequent upon the interlocutory listing on 31 March 2017;

2. The costs that are the subject of Order (1) above are assessed in the gross sum of $5500 including GST, and those costs are to be paid by the plaintiff to the defendant within 21 days of today's date;

3. For reasons of procedural fairness, the question of whether the plaintiff should be indemnified by any person for the costs that are the subject of orders (1) and (2) above, is deferred, and is reserved to be determined after the delivery of the separate final judgments on the liability and quantum issues in the proceedings;

4. The plaintiff is to pay the defendant's costs of the abandoned notice of motion filed on 26 May 2017, seeking summary judgment, such costs assessed in the sum of $3500, payable when the litigation concludes;

5. I make procedural orders and directions for the further conduct of the proceedings in accordance with the initialled short minutes filed in Court on 9 June 2017;

6. Liberty to apply on 7 days' notice if the plaintiff seeks to vary the time for payment identified in Order (2) above. Catchwords: COSTS – assessment of wasted costs additional to amount assessed on 2 June 2017 – further costs order relating to an abandoned notice of motion which sought summary judgment where motion was bound to fail Legislation Cited: Civil Liability Act 2002, s 5B, s 5D Civil Procedure Act 2005, s 98(3) Uniform Civil Procedure Rules 2005, r 13.1 Cases Cited: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 State of New South Wales v Williams [2014] NSWCA 177 White v Lachlan Shire Council (No 1) [2017] NSWDC 132 Category: Costs Parties: Gary White (Plaintiff) Lachlan Shire Council (Defendant) Representation: Counsel: Mr A Kaylinger (As agent for the plaintiff) Mr JT Gibson (Defendant)