Transport for NSW v Boensch (No 3)

The case between Transport for NSW and Boensch, specifically Boensch (No 3), was before the court to address several issues relating to costs and judgments. Transport for NSW sought costs payable forthwith, arguing this was necessary under certain factors outlined by precedent. Boensch, on the other hand, argued that such an order would hinder his ability to defend himself and pursue his cross-claim, suggesting it would amount to a punitive measure. The court was tasked with balancing these considerations against the general principles governing costs in civil litigation.

In determining the matter, the court considered the applicable rules under the Uniform Civil Procedure Rules 2005 (NSW) and the Civil Procedure Act 2005 (NSW). It examined the Morningstar factors and the submissions from both parties. The court held that the default position under rule 42.7 of the Uniform Civil Procedure Rules applied, and thus, costs were to be payable forthwith. Additionally, the court granted Transport for NSW's application for gross sum costs, acknowledging the potential for substantial expense, delay, and aggravation if a contested assessment were to proceed. This decision was made considering the contested nature of the costs and the plaintiff's argument that a gross sum would be more equitable.

Further, the court addressed the issue of varying the principal judgment to account for a Notice of Intention to Appeal that had been filed in related proceedings. Boensch argued that the principal judgment should be amended because of this notice. However, as no Notice to Appeal had been lodged, and Boensch was out of time to do so, the court refused to vary the principal judgment. The court held that the failure to lodge a Notice to Appeal within the required timeframe meant that Boensch's cross-claimant status did not entitle him to the relief sought.