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 that:

"consistent with the logic of the general rule as it regards first instance proceedings, here because of the errors of the trial judge the successful party has not yet been established, and none of the component elements impacting on who may be the successful party have yet been established, so that they are removed from the proceedings. ... the logic of the general rule as it normally concerns the costs of the new trial has equal application to the costs of the appeal."

1. The appellant also referred to Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, where Campbell JA referred to the vicissitudes of litigation which can affect costs but which are not the fault of any party. She submitted:

"Here, leaving aside the appeal phase being a different phase from the first instance phase, the trial judge's errors that necessitated a new trial are examples of those vicissitudes, and, as Campbell JA stated, [61], 'the costs of rectifying the error[s] should prima facie follow the event.'"

1. Those submissions should be rejected. The appellant chose to attack on appeal the finding of no causation, and the respondent chose to defend it. The respondent chose, by his notice of contention, to attack the finding of breach, and the appellant chose to defend it. Each of those attacks succeeded, and each of those defences failed. Each litigious exercise reflects a decision whose success or failure is independent of the ultimate success or failure of the parties at trial. Although this Court identified the errors in the judgment at first instance in relation to breach and causation, the unsuccessful attempts by each party to sustain the findings which favoured him or her are not vicissitudes of litigation in the sense to which Campbell JA referred; each unsuccessful attempt came about by reason of the choice of that party, and, in the particular circumstances of this appeal, was an appropriate "event" to inform the exercise of discretion relating to its costs. As much was clear on the face of the reasons given on 28 October 2013.

1. Although the appellant's submissions expressly state that they are "leaving aside the appeal phase being a different phase from the first instance phase", it is precisely that difference which warrants the differential orders for costs at first instance and on appeal.

1. Accordingly, there is no reason to vary the costs orders in the manner for which the appellant contends. Her notice of motion should be dismissed. The same reasoning results in an order that she pay the respondent's costs of the notice of motion.

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Decision last updated: 19 December 2013