Read the full judgment text of CACV 000082/1988 on BabelCite. This Court of Appeal judgment was delivered on 10 February 1989 before Cons VP, Hunter JA, Mortimer J.
Civil procedure – Court of Appeal – application to discharge order – alleged breach of undertaking – application withdrawn at outset of hearing – costs of unsuccessful application. The defendants applied to discharge an order made by the Court of Appeal on 16 November 1988, alleging that the plaintiff had failed to honour an undertaking given to the Court of Appeal on 6 November 1988. The application was insufficient in form, as it did not specify what undertaking was broken or the breach alleged; that information emerged only in a supporting affidavit filed some days later. At the outset of the hearing on 10 February 1989, the application was withdrawn. The court held that the application had wholly failed. Whether the ordinary rule that an unsuccessful applicant pays the costs should be displaced or a special or penal costs order made. The court held that the ordinary rule applied, and there was no reason to depart from it and no basis for any special or penal costs order. The application was recorded as withdrawn, and the applicants were ordered to pay the plaintiff's costs of the application, to be taxed if not agreed.
Legal issues: Costs of a withdrawn application to discharge a court order
Outcome: Application withdrawn; applicants ordered to pay the plaintiff's costs of the application