Richards v Kadian (No 2)

[2005] NSWCA 373

CITATION:	Richards v. Kadian & Ors. (No.2) [2005] NSWCA 373 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Dealt with on written submissions in Chambers
JUDGMENT DATE:	2 November 2005
JUDGMENT OF:	Hodgson JA at 1
DECISION:	The costs of the appeal be assessable and payable forthwith.

CATCHWORDS:	PROCEDURE - Costs - Appeal - Interlocutory matter - Whether order should be made that costs be assessable and payable forthwith.
LEGISLATION CITED:	Legal Aid Commission Act 1979 s.42
CASES CITED:	Fiduciary Ltd. v. Morningstar Research Pty. Ltd. [2002] NSWSC 52, 55 NSWLR 1
PARTIES:	Bruce Richards - claimants Ankur Kadian by his tutor Janak Kadian, Janak Kadian, Gurmeet Kadian - opponents
FILE NUMBER(S):	CA 41020/04
COUNSEL:	Mr. S.A. Woods for claimant Mr. D. Higgs SC with Mr. I. Butcher for opponents
SOLICITORS:	Blake Dawson Waldron - claimants McLaughlin & Riordan - opponents

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC20219/01
LOWER COURT JUDICIAL OFFICER:	Campbell J

CA 41020/04
SC 20219/01

HODGSON JA

Wednesday 2 November 2005

RICHARDS V. ANKUR KADIAN by his Tutor JANAK KADIAN & ORS. (NO.2)

Judgment

1 HODGSON JA: When the judgment of the Court of Appeal was handed down by me on 23 September 2005, the respondent applied orally for an order that its costs be assessable forthwith. I gave leave for written submissions in support of that application to be lodged within 7 days, and for submissions in response to be lodged within a further 7 days. In this judgment, I am dealing with that application, pursuant to s.46(2)(a) of the Supreme Court Act.

2 It is not entirely clear whether the application relates only to the costs of the appeal, or also to the costs at first instance. In my opinion, it would be inappropriate for this Court to deal, after dismissal of an appeal, with the question whether the costs at first instance should be assessable forthwith. That could possibly have been raised at the hearing of the appeal, at least if such an application had been made to the primary judge and refused; but it cannot be raised now. It may be possible still to make such an application to the primary judge.

3 Accordingly, I will confine my attention to the costs of the appeal.

4 In opposing an order that the costs of the appeal be assessable and payable forthwith, the appellant has relied inter alia on the circumstance that the respondent is legally aided. However, s.42 of the Legal Aid Commission Act 1979 provides:

42 Discretion of court or tribunal as to costs
A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.

5 In my opinion, the order sought…