Connector Park Pty Ltd v RV Pty Ltd (No 2)
[2019] TASFC 2
•26 March 2019
[2019] TASFC 2
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Connector Park Pty Ltd v RV Pty Ltd (No 2) [2019] TASFC 2
PARTIES: CONNECTOR PARK PTY LTD
v
RV PTY LTD
FILE NO: 1111/2017
JUDGMENT
APPEALED FROM: RV Pty Limited v Connector Park Pty Ltd(No 2) [2017] TASSC 22
DELIVERED ON: 26 March 2019
DELIVERED AT: Hobart
HEARING DATE: On the papers
JUDGMENT OF: Geason J, Martin AJ and Marshall AJ
CATCHWORDS:
Procedure - Costs - General rule: Costs follow event - Partial success - Apportionment of costs.
Aust Dig [1484].
REPRESENTATION:
Counsel:
Appellant: C Groves
Respondent: S B McElwaine SC
Solicitors:
Appellant: Dobson Mitchell Allport
Respondent: Shaun McElwaine + Associates
Judgment Number: [2019] TASFC 2
Number of paragraphs: 10
Serial No 2/2019
File No 1111/2017
CONNECTOR PARK PTY LTD v RV PTY LTD (NO 2)
REASONS FOR JUDGMENT FULL COURT
GEASON J
MARTIN AJ
MARSHALL AJ
26 March 2019
Orders of the Court
The appellant is to pay 90% of the respondent's costs of the appeal in an amount agreed, and, if not agreed, in the amount taxed.
The respondent is to pay the appellant's costs of the cross-appeal in an amount agreed, and, if not agreed, in the amount taxed.
Serial No 2/2019
File No 1111/2017
CONNECTOR PARK PTY LTD v RV PTY LTD (NO 2)
REASONS FOR JUDGMENT FULL COURT
GEASON J
MARTIN AJ
MARSHALL AJ
26 March 2019
On 3 December 2018, the Full Court allowed the appellant's appeal against the respondent: Connector Park Pty Ltd v RV Pty Ltd [2018] TASFC 13. It dismissed the respondent's cross-appeal.
In the appeal the respondent submits that the limited nature of the appellant's success ought to be reflected in the costs order. It submits the proper course is to order it to pay the respondent's costs to be taxed.
The appellant disagrees. It submits that the usual order should be made because the result of the litigation was in its favour, and the general approach is to award costs without attempting to differentiate between successful and unsuccessful issues, save where an issue is clearly dominant or separable: Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46, per Porter J at [35].
The discretion regarding costs has been described as unconfined or unfettered, to be exercised judicially, and not by reference to irrelevant or extraneous considerations, but upon facts connected with the litigation: Donald Campbell & Co Ltd v Pollak[1927] AC 732 at 811. Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed: Sutherland v Globe Real Estate Pty Ltd [2018] VSC 408. In some instances a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them: Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 at 222.
In the appeal the appellant's success was limited. Four of its grounds of appeal were dismissed, and an application to amend its notice of appeal (ground 6) was refused. Ground 6 in its original form was upheld, but the evidence held to have been wrongly excluded would have made no difference to the outcome of the trial.
The Court is persuaded that the mixed nature of the result requires modification of the usual costs order. A costs order is compensatory in nature and the order we make should compensate the respondent for the costs incurred in meeting a substantially unsuccessful appeal, while reflecting the appellant's limited success in the appeal. To that end the Court will apportion costs.
As to apportionment, each party has made written submissions which have been considered by the Court. The apportionment of costs should reflect broadly the relative time and effort attributable to the issues successfully agitated in the appeal, including the application for leave to amend ground 6.
The most efficient way to apportion costs is to make an order in favour of the respondent, applying a percentage amount in reduction of that entitlement, as a notional offset in favour of the appellant. This is intended to reflect the extent of the appellant's success.
We will order that the appellant is to pay 90% of the respondent's costs of the appeal in an amount agreed, or, if not agreed, in the amount taxed.
In the cross-appeal the respondent is to pay the appellant's costs, in an amount agreed, and, if not agreed, in the amount taxed.
Orders
1The appellant is to pay 90% of the respondent's costs of the appeal in an amount agreed, and, if not agreed, in the amount taxed.
2The respondent is to pay the appellant's costs of the cross-appeal in an amount agreed, and, if not agreed, in the amount taxed.
3
0