Old v Miniter (No 2)

The case of Old v Miniter (No 2) involved a dispute between the plaintiff and the defendant. The nature of the disagreement was centred around the costs associated with the proceedings, specifically in relation to both parties' failure to comply with a Judicial Registrar's order to engage in alternative dispute resolution by 30 September 2019. The hearing was scheduled to commence on 28 October 2019, and neither party brought the non-compliance to the attention of the Court to seek any remedial orders. The matter was heard in the Supreme Court of New South Wales.

The central legal issues that the Court needed to address involved the determination of the appropriate order for the costs of the proceedings, considering both parties' failure to comply with the Judicial Registrar’s order. The Court also had to consider the impact of the Civil Liability Act 2005 (NSW), particularly section 5O, on the proceedings, and how this may have affected the preparation of the issues for trial. Additionally, the Court needed to decide how to apportion the costs between the parties, taking into account the belated realisation of the applicability of the Civil Liability Act.

The Court determined that the plaintiff should bear the defendant's costs of the proceedings on the ordinary basis but limited the costs liability to those properly incurred by the defendant up until 30 September 2019. The defendant, on the other hand, was to pay his own costs incurred in defending the proceedings after 30 September 2019. Furthermore, the plaintiff was to pay his own costs of the proceedings. The Court also provided guidance for any Costs Assessor appointed to assess liability for disputed costs, stating that the parties should not be held responsible for any costs incurred by their legal representatives due to the incorrect formulation and preparation of the issues for trial, which was a result of a belated appreciation of the fact that the Civil Liability Act had no application to these proceedings.

The final orders of the Court were that the plaintiff was to pay the defendant's costs of the proceedings up until 30 September 2019, while the defendant was to pay his own costs incurred after that date. Additionally, the plaintiff was to pay his own costs of the proceedings. The Court emphasised that the parties should not be held responsible for any costs incurred by their legal representatives due to the incorrect formulation and preparation of the issues for trial, as a result of the belated realisation of the applicability of the Civil Liability Act.