Boland v Dillon; Cush v Dillon

Case [2015] NSWCA 183


Court of Appeal
Supreme Court

New South Wales

Case Name: 

Boland v Dillon; Cush v Dillon

Medium Neutral Citation: 

[2015] NSWCA 183

Hearing Date(s): 

12 March 2015

Date of Orders:

2 July 2015

Decision Date: 

2 July 2015

Before: 

McColl JA [1]
Gleeson JA [16]
Bergin CJ in Eq [22]

Decision: 

(1) In matter 2009/298338 the Notice of Motion is dismissed, with costs;
(2) In matter 2009/298211 the Amended Notice of Motion is dismissed, with costs.

Catchwords: 

ORDERS – ENFORCEMENT – Where costs orders made in appeal in 2010 in which re-trial on limited issue ordered – where appeal from orders dismissed in High Court – where outcome of re-trial favourable to parties against whom costs orders were made – whether party in whose favour costs orders were made should be prohibited from enforcing them

Legislation Cited: 

Civil Procedure Act 2005
Defamation Act 1974
Uniform Civil Procedure Rules 2005

Cases Cited: 

Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2007] NSWCA 57; (2007) 69 NSWLR 374
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Cush v Dillon; Boland v Dillon [2009] NSWDC 21
Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 243 CLR 298
Cush v Dillon; Boland v Dillon (District Court (NSW), Charteris SC DCJ, 19 April 2013, unrep)
Cush v Dillon; Boland v Dillon (District Court (NSW), Charteris SC DCJ, 3 September 2013, unrep)
Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462
De L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207
Dillon v Boland; Dillon v Cush [2012] NSWCA 364
Dillon v Cush; Dillon v Boland [2010] NSWCA 165
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Forge & Ors v Australian Securities & Investments Commission [No 2] [2007] NSWCA 42; (2007) 69 NSWLR 575
Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72
Kelly v Mina [2014] NSWCA 9
Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287
Permewan Wright Consolidated Pty Ltd v Attorney-General for the State of New South Wales on the relation of Franklins’ Stores Pty Ltd (1978) 35 NSWLR 365
R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers’ Federation [1981] HCA 33; (1981) 147 CLR 471
Re Inchcape (Earl of); Craigmyle v Inchcape [1942] Ch 394
Sakr v Mercantile Mutual Insurance (Australia) Limited [2000] NSWCA 266
Shedden v Patrick (1854) 1 Macq 535, HL, 590 Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470
Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales [2010] NSWCA 252; (2010) NSWLR 94

Texts Cited: 

K R Handley, Spencer Bower and Handley Res Judicata (4th ed 2009, LexisNexis)

Category: 

Procedural and other rulings

Parties: 

Amanda Cush (First Applicant)
Leslie Francis Boland…

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Details
AGLC
Boland v Dillon; Cush v Dillon [2015] NSWCA 183
Case
[2015] NSWCA 183
Decision Date

CaseChat Overview and Summary

In *Boland v Dillon; Cush v Dillon*, the New South Wales Court of Appeal considered whether a party who had obtained costs orders in a 2010 appeal should be prohibited from enforcing those orders. The original appeal had ordered a re-trial on a limited issue, and subsequently, the High Court dismissed an appeal from those orders. The outcome of the re-trial was favourable to the parties against whom the costs orders had been made.

The central legal issue before the Court of Appeal was whether the circumstances warranted preventing the enforcement of the existing costs orders. This involved an assessment of whether the subsequent favourable outcome of the re-trial, following the dismissal of the High Court appeal, created an equitable basis to restrain the enforcement of the earlier costs orders.

The Court of Appeal dismissed the applications to prohibit enforcement. The Court reasoned that the costs orders made in the 2010 appeal were final and binding. The subsequent re-trial, while favourable to the parties seeking to restrain enforcement, did not retrospectively alter the basis upon which the costs orders were made. The Court applied the principle that costs orders are generally enforceable according to their terms, and exceptional circumstances are required to justify their restraint.

Consequently, the Court ordered that in matter 2009/298338 the Notice of Motion was dismissed, with costs, and in matter 2009/298211 the Amended Notice of Motion was dismissed, with costs.

Orders

Orders of the court

(1) In matter 2009/298338 the Notice of Motion is dismissed, with costs;

(2) In matter 2009/298211 the Amended Notice of Motion is dismissed, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BERGIN CJ

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Ratio Decidendi

Legal Principle Established

Established by: BERGIN CJ

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