Yakmor v Hamdoush (No 2)

The appeal concerned the liability of a tutor for the costs of an appeal brought by a party under a disability. The appellant, who was under a disability, appealed a decision of the primary judge. The respondent sought an order that the appellant's tutor pay the respondent's costs of the appeal.

The central legal issue before the Court of Appeal was whether the tutor, who had conducted the appeal on behalf of the appellant, was personally liable for the costs of the appeal. This required the court to consider the meaning of "party" within the Uniform Civil Procedure Rules 2005 (NSW) (UCP Rules) and, specifically, rule 42.3, which deals with the liability of a tutor for costs.

The Court of Appeal held that a tutor appointed to conduct proceedings for a party under a disability is not a "party" to the proceedings in their own right for the purposes of rule 42.3 of the UCP Rules. The court reasoned that the tutor acts as an officer of the court to facilitate the litigation for the benefit of the person under disability, and their role does not extend to assuming personal liability for costs. The court noted that while a tutor might be liable for costs in exceptional circumstances, such as misconduct, this was not such a case.

Consequently, the Court of Appeal ordered that the appellant pay the respondent's costs of the appeal, and further ordered that the appellant's tutor pay to the respondent the costs the appellant was ordered to pay.