Background
Leslie Kevin Sonter and Kerry Anne Henson brought separate proceedings against Max Fisher and other defendants. The nature of the substantive claims was not material to the costs decision. In the Henson proceeding, Fisher had sought dismissal of allegations against him that were not included in an amended statement of claim. In the Sonter proceeding, a proposed amended pleading would omit allegations against Fisher.
On 23 July 2026, the plaintiffs and Fisher filed proposed consent judgments under which judgment would be entered for Fisher, with costs. The other defendants learned of the proposed judgments that afternoon. At the 24 July listing, they sought time to consider whether final judgment for Fisher could affect any potential cross-claim. The matters were adjourned for one week; by 31 July, those defendants confirmed they would not cross-claim and consented to the judgments. The remaining dispute concerned the costs of the additional directions hearing.
The Court’s Holding
Sirtes J made no order as to costs. Although the plaintiffs and Fisher argued that the third defendant’s objection on 24 July had caused the further hearing, the Court held that the second to fourth defendants had not acted unreasonably in seeking time to consider the newly proposed consent judgments and obtain instructions.
The Court rejected the submission that prior correspondence, including notice that Fisher regarded judgment in his favour as essential, gave the other defendants sufficient notice of the actual consent judgments. There was a material difference between discontinuance and entry of judgment. Once allowed time to assess their positions, the defendants used it appropriately: they consented to the judgments and decided not to bring cross-claims. Accordingly, the adjournment costs were not caused by an unjustified position.
Key Takeaways
- A party given late notice of a proposed consent judgment may reasonably seek time to consider its consequences.
- Notice that a party wants judgment is not equivalent to notice of a signed proposed consent judgment.
- Where all parties act reasonably and the additional time is used productively, a costs order for an adjournment may be unwarranted.
Why It Matters
The decision illustrates the practical distinction between discontinuing a claim and entering final judgment. Even where a potential cross-claim ultimately has no prospect or is not pursued, affected parties may be entitled to a reasonable opportunity to consider the consequences of final orders.
For costs purposes, the question is not simply who occasioned an extra hearing, but whether that party’s conduct was unreasonable. A short, justified adjournment following late notice will not necessarily attract an adverse costs order.