(1) The plaintiff’s application for me to recuse myself is refused.
(2) The plaintiff’s application pursuant to UCPR r 36.15 to set aside judgement handed down on 14 November 2019 dismissing these proceedings (Young v Racing NSW [2019] NSWDC 662) is dismissed with costs.
(3) The plaintiff’s application for leave to cross-examine the defendants’ deponents is refused.
(4) The plaintiff is to pay the defendants’ costs of these proceedings as follows:
(a) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first and second defendants’ costs in the sum of $57,808.69.
(b) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the third defendant’s costs in the sum of $39,563.79.
(5) Exhibits retained until further order.
Catchwords:
PRACTICE AND PROCEDURE – defendants bring application for gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) after proceedings summarily dismissed – plaintiff brings application under UCPR r 36.15 to set judgment aside – application to set aside refused – gross sum costs orders made
Houston -v- Barniville & ors; Houston -v- Geoghegan & ors; Houston -v- The General Council of The Bar of Ireland; Houston -v- The General Council of The Bar of Ireland; Houston -v- O'Neill [2019] IEHC 601
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Young v Racing NSW (No 2) [2020] NSWDC 785
Case
[2020] NSWDC 785
Decision Date
CaseChat Overview and Summary
The case of Young v Racing NSW (No 2) involved a dispute where the defendants sought an order for gross sum costs after the proceedings were dismissed. The matter was heard in the District Court of New South Wales. The plaintiff, having had the proceedings dismissed, subsequently applied to set aside the judgment under UCPR r 36.15 and also sought leave to cross-examine the defendants' deponents. The defendants, in response, applied for a gross sum costs order under section 98(4)(c) of the Civil Procedure Act 2005 (NSW).
The court had to determine whether the plaintiff's application to set aside the judgment was valid and if the plaintiff was entitled to cross-examine the defendants' deponents. Additionally, the court needed to decide if the defendants were entitled to a gross sum costs order under section 98(4)(c) of the Civil Procedure Act 2005 (NSW). The court also considered the plaintiff's application for the judge to recuse themselves from the matter.
The court found that the plaintiff's application to set aside the judgment was without merit and dismissed it with costs. The court also refused the plaintiff's application for leave to cross-examine the defendants' deponents. It was determined that the proceedings were summarily dismissed due to the plaintiff's failure to establish a prima facie case, and therefore, the defendants were entitled to a gross sum costs order. The court found the plaintiff's application for the judge to recuse themselves was also without merit. Consequently, the plaintiff was ordered to pay the defendants' costs as per the gross sum costs order.
The final orders of the court included the refusal of the plaintiff's application for the judge to recuse themselves and the application to set aside the judgment. The plaintiff was also refused leave to cross-examine the defendants' deponents. The court ordered the plaintiff to pay the defendants' costs, with specific amounts allocated to each defendant under section 98(4)(c) of the Civil Procedure Act 2005 (NSW). The exhibits were retained until further order.
Orders
Orders of the court
Orders
(1) The plaintiff’s application for me to recuse myself is refused.
(2) The plaintiff’s application pursuant to UCPR r 36.15 to set aside judgement handed down on 14 November 2019 dismissing these proceedings (Young v Racing NSW [2019] NSWDC 662) is dismissed with costs.
(3) The plaintiff’s application for leave to cross-examine the defendants’ deponents is refused.
(4) The plaintiff is to pay the defendants’ costs of these proceedings as follows:
(a) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first and second defendants’ costs in the sum of $57,808.69.
(b) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the third defendant’s costs in the sum of $39,563.79.