Coote v Kelly (No 2)

[2013] NSWCA 457

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Coote v Kelly (No 2) [2013] NSWCA 457

Hearing dates:

On the papers

Decision date:

19 December 2013

Before:

Basten JA;
Hoeben JA;
Leeming JA.

Decision:

Appellant's notice of motion filed 8 November 2013 be dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - notice of motion to vary costs order - no basis for different order for costs demonstrated

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Category:

Costs

Parties:

Melissa Anne Coote (Appellant/Applicant)
Dr Steven Kelly (Respondent)

Representation:

Counsel:
BMJ Toomey QC / EG Romaniuk SC / OJ Dinkha (Appellant)
TK Tobin QC / JM Morris (Respondent)
Solicitors:
Stacks Goudkamp (Appellant)
Norton Rose (Respondent)

File Number(s):

2012/100122

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2012] NSWSC 219

Date of Decision:

2012-03-14 00:00:00

Before:

Schmidt J

File Number(s):

2011/339988

Judgment

1. THE COURT: By its judgment delivered 28 October 2013, this Court set aside the judgment at first instance and ordered that there be a new trial: [2013] NSWCA 357. It was explained in [66] that:

"Because both parties have enjoyed success on the appeal, there should be no order as to the costs of the appeal, with the intent that they each bear their own costs. The question of the costs of the proceedings at first instance should be left to the judge before whom the new trial is to be conducted."

1. By notice of motion filed 8 November 2013, the appellant sought to vary the order for the costs of the appeal in these terms:

"the costs of the appeal abide the outcome of the new trial, with the intent that the costs of the appeal be payable by the party ultimately unsuccessful in the proceedings at first instance."

1. The appellant filed submissions on 3 December in support of her notice of motion, and the respondent filed submissions resisting the motion on 13 December.

1. The appellant referred to a "general rule" that where a new trial is ordered, the costs of the first trial should be determined following the retrial, citing Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427, and noted that the Court had adopted that approach. However, the appellant said that the order for a retrial meant that there was no "event" for the purposes of the appeal, so that the starting point that costs follow the event in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) had no application. The appellant submitted…