Quinlivan v Konowalous (No 2)

In Quinlivan v Konowalous (No 2), the plaintiff sought costs associated with two adjournments of an application, while the defendants sought costs of the application and the proceedings. The matter was before the court on an application by the first and second defendants for their costs of the application and the proceedings on a standard basis, and an application by the third, fourth and fifth defendants for their costs on an indemnity basis. The court was required to determine whether the costs thrown away by the adjournments should follow the same fate as the other costs of the proceeding and whether the costs of the third, fourth and fifth defendants should be assessed on the indemnity basis.

The court noted that the renewal of the plaintiff’s claim by the Registrar was set aside and the claim dismissed. The court held that the direct fault which led to the adjournment of 13 February 2019 was that of the second defendant, and therefore no order should be made as to the costs of that adjournment. The court held that the plaintiff’s claims, other than the defamation claims, seemed misconceived, and the defamation claims faced significant difficulties. The court found that one of the motivations for bringing and maintaining the action was an ulterior one, and the plaintiff made a deliberate choice not to serve the claim within time. The court held that the plaintiff’s conduct constituted a breach of the implied undertaking imposed by r 5 of the UCPR. The court held that the costs of the third, fourth and fifth defendants should be assessed on the indemnity basis.

The court ordered that the plaintiff pay the first and second defendants’ costs of the claim, including the application filed on 16 January 2019 and including the costs of the adjournment of 22 January 2019, but excluding the costs of the adjournment of 13 February 2019, on the standard basis. The court ordered that the plaintiff pay the costs of the third, fourth and fifth defendants of the claim, including the costs of the application filed on 16 January 2019, on the indemnity basis.