Zisti v Bartter Enterprises Pty Ltd

In Zisti v Bartter Enterprises Pty Ltd, the appellant sought to appeal orders made by the District Court on 23 January 2012 and 16 March 2012. These orders concerned costs arising from the appellant's application to set aside a default judgment obtained by the respondent. The dispute centred on the nature of the costs ordered, the basis of their assessment, and the consequences of non-payment.

The primary legal issues before the Court of Appeal were whether the District Court had the power to make the orders it did, particularly regarding the assessment of costs on an indemnity basis and the order for payment of a specified sum "on account of" costs. The court also considered whether the District Court had applied the correct principles in dismissing the appellant's application to set aside the default judgment due to non-payment of the specified sum, without regard to the merits of the underlying application.

The Court of Appeal found that the District Court had erred in its orders. It determined that the order for costs on 23 January 2012, which purported to vary an earlier costs order, was made on the wrong principle. Specifically, the court varied the order to clarify that costs for 17 November 2011 were to be assessed on an indemnity basis, while costs for 9 December 2011 were to be on the ordinary basis. Furthermore, the court set aside the order made on 16 March 2012, which had dismissed the appellant's application to set aside the default judgment. This dismissal was found to be erroneous as it was based solely on the failure to pay a sum "on account of" costs, without considering the merits of the application to set aside the default judgment. The court allowed the appeal, varied certain costs orders, set aside others, and remitted the appellant's original notice of motion to the District Court for hearing and determination. The respondent was ordered to pay the appellant's costs of the appeal.