El-Mir and 1 Or v Risk [No 2]

In *El-Mir and 1 Or v Risk [No 2]*, the New South Wales Court of Appeal considered an appeal concerning costs orders made by the primary judge. The dispute involved claims and defences that had evolved throughout the proceedings in the District Court.

The central legal issues before the Court of Appeal were: (a) whether the primary judge erred in granting leave to amend the defence, and if so, what the appropriate costs consequences should be; (b) how the costs of a specific adoption hearing should be dealt with; and (c) whether an amount specified in a previous order should be corrected.

The Court of Appeal reasoned that the grant of leave to amend the defence should be conditioned on the appellants paying the costs incurred in the District Court between 22 August 2001 and 17 March 2003, reflecting the disruption and additional work caused by the amendment. Regarding the adoption hearing, the Court determined that its costs should be left to the discretion of the judge who would ultimately decide a separate issue. The Court also ordered a minor correction to a monetary amount in a previous order.

Consequently, the Court of Appeal ordered that leave to amend the defence be subject to the appellants paying specified District Court costs. The costs of the adoption hearing were to be determined by the judge hearing the separate issue. Order 6 of the primary judgment was amended to reflect a corrected sum, and the parties were to bear their own costs for written submissions following the primary judgment.