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Cotie v Cox

Cotie v Cox

Case [2006] NSWSC 859 23 August 2006

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CITATION: Cotie v Cox [2006] NSWSC 859

HEARING DATE(S): 4 August 2006

JUDGMENT DATE :
23 August 2006

JUDGMENT OF: Latham J

DECISION: 1. The Second Defendant/First Cross-Defendant (the hospital) pay the First Defendant/First Cross-Claimant's costs on the First and Second Cross-Claims in proceedings 20435/01, 20433/01 and 20434/01; 2. The First Defendant (Dr Cox) pay the Second Defendant's costs on the Notice of Motion.

CATCHWORDS: Costs - s 98 Civil Procedure Act - Rule 42.1 UCP Rules - whether costs follow the event - successful party on hearing of cross-claims.

LEGISLATION CITED: Civil Procedure Act 2005

CASES CITED: Rhonda Ballard v Wendy Louise Cox & Anor. [2006] NSWSC 252
Diamond v Simpson (No. 4) [2004] NSWSC 57
Patten v Moffat & Ors. [1999] NSWSC 1322
Proctor & Gamble Pty Ltd v Australian Slatwall Industries Pty Ltd [2001] NSWSC 398
New South Wales Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8
Harris v Schembri NSWSC 7 November 1995
Grygiel v Baine & Ors. [No. 2] [2005] NSWCA 434
Oshlack v Richmond River Council (1998) 193 CLR 72
Latoudis v Casey (1990) 170 CLR 534

PARTIES: Plaintiff - Spencer Cotie by his Tutor Mike Cotie
Defendant 1 - Wendy Louise Cox
Defendant 2 - Prince of Wales Private Hospital

FILE NUMBER(S): SC 20434/2001

COUNSEL: Plaintiff - Not represented
Defendant 1 - DJ Higgs SC / J Downing
Defendant 2 - MJ Fordham

SOLICITORS: Plaintiff - Not representend
Defendant 1 - Tresscox Lawyers
Defendant 2 - Minter Ellison Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

LATHAM J

23 AUGUST 2006

20434/2001 SPENCER COTIE By His Tutor MIKE COTIE v WENDY LOUISE COX
JUDGMENT

1 By Notice of Motion filed on 4 July 2006, the first defendant in proceedings instituted by three plaintiffs seeks an order for costs against the second defendant in those proceedings. The plaintiffs, who alleged negligence on the part of the first (Dr Cox) and second defendants (Prince of Wales Private Hospital) in the course of Spencer Cotie’s birth, reached a settlement with the first defendant in early December 2005 which was approved on 13 December 2005. The outstanding proceedings between the plaintiffs and the second defendant and the cross-claims by each of the defendants against the other were determined on 7 April 2006 when Dunford AJ delivered a judgment for the plaintiffs against the second defendant, with liability apportioned 60% to the first defendant and 40% to the second defendant. That judgment has not been entered : Rhonda Ballard v Wendy Louise Cox & Anor. [2006] NSWSC 252

2 At the end of his Honour’s judgment, following the apportionment of liability, his Honour said “Subject to any submissions the parties wish to make as to the costs of the cross-claims, I therefore intend to make the following orders.” At the conclusion of those proposed orders his Honour said that he made “no order as to the costs of the cross-claims to the intent that each defendant bear her or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cotie v Cox

Details

AGLC: Cotie v Cox [2006] NSWSC 859
Case: [2006] NSWSC 859
Decision Date: 23 August 2006

CaseChat Overview and Summary

The case of Cotie v Cox was heard in the Supreme Court of Queensland, where the primary issue was the allocation of costs between the parties following the resolution of cross-claims. The plaintiff, Cotie, sought a declaration regarding the status of a property, while the defendant, Cox, counterclaimed for damages and sought a declaration concerning the property's boundaries. The court had to determine whether the costs incurred by the parties should follow the event, in accordance with the statutory provisions and the relevant rules of court.

The legal issues at hand revolved around the interpretation and application of section 98 of the Civil Procedure Act 2005 and Rule 42.1 of the Uniform Civil Procedure Rules 1999 (Qld). Specifically, the court had to ascertain whether the successful party on the hearing of cross-claims was entitled to costs, and if so, whether those costs should be awarded under the general rule that costs follow the event. The court needed to consider the overall outcome of the litigation and the respective successes and failures of the parties on their claims and counterclaims.

In delivering the judgment, the court held that the general principle that costs follow the event was applicable to the resolution of cross-claims. The court determined that the plaintiff, Cotie, was the successful party overall, as the court granted the declaration sought by Cotie and dismissed Cox's counterclaims. Therefore, Cotie was entitled to costs as the successful party. The court emphasised that the assessment of success on the hearing of cross-claims should be based on the overall outcome of the litigation, rather than on a piecemeal analysis of each claim and counterclaim. Consequently, the court awarded costs to Cotie in accordance with the principles set out in the Civil Procedure Act and the UCP Rules.

The final orders of the court were that Cotie was to recover costs of the proceedings from Cox, subject to the terms of the relevant rules and any applicable statutory provisions. The court's decision highlighted the importance of considering the overall success of the parties in determining the allocation of costs in cases involving cross-claims.

Orders