Coshott v Woollahra Municipal Council

The claimant sought leave to appeal a judgment of the Common Law Division that dismissed his appeal from a review panel's assessment of costs ordered against him in the District Court. The respondent, Woollahra Municipal Council, had received a partial indemnity for these costs from a third party. The claimant contended that the Council was not entitled to recover costs paid by this third party. Additionally, the claimant appealed as of right from the dismissal of his claim for a declaration regarding his right to recover taxed costs he had paid in Federal Court proceedings.

The court was required to determine whether the cost assessment could be challenged on the grounds of breaching the indemnity principle, and whether the orders for costs in the Federal Court proceedings were open to challenge.

The court reasoned that the cost assessment was not challengeable for breach of the indemnity principle because the third party would be subrogated to any recovery by the Council once it had been reimbursed for its expenditure. Furthermore, the court held that the orders for costs in the Federal Court proceedings were final orders, applying the principle from *Forbes-Smith v Forbes-Smith* [1901] P 258 CA. Consequently, the Council’s entitlement to these costs was considered *res judicata*, meaning the matter had already been finally decided and could not be reopened.

Leave to appeal was refused with costs, and the appeal was dismissed with costs.