McDonald v Shone

The case of McDonald v Shone involved multiple defendants and raised issues concerning procedural matters and costs in the Supreme Court of New South Wales. The plaintiff, McDonald, sought to dismiss proceedings against the third defendant, to set aside an ex-parte order extending the time to serve pleadings on the first defendant, and to challenge the appropriateness of New South Wales as the forum for the proceedings. The plaintiff consented to the dismissal of proceedings against the third defendant, leaving the primary issues concerning the costs and procedural orders. The court was required to determine whether indemnity costs were appropriately ordered in part and whether the ex-parte order extending time to serve pleadings should be set aside.

The court addressed the issue of indemnity costs first, finding that the plaintiff's consent to dismiss proceedings against the third defendant did not automatically entitle them to indemnity costs. The court noted that the plaintiff had not established that the third defendant acted unreasonably in continuing with the proceedings, which is a prerequisite for ordering indemnity costs. The court then considered whether the New South Wales forum was appropriate and whether the pleaded claim was hopeless. The court found that neither the plaintiff nor the first defendant had established that New South Wales was an inappropriate forum or that the pleaded claim was hopeless. Consequently, the orders sought to set aside the ex-parte order were dismissed.

In conclusion, the court ordered that the motion to set aside the ex-parte order was dismissed and that the indemnity costs were ordered in part only. The court did not find merit in the plaintiff's contentions regarding the forum or the hopelessness of the claim. The orders were not set aside, and the proceedings against the first defendant continued in New South Wales.