Fordyce v Fordham

Case [2006] NSWCA 274
Reported Decision: 67 NSWLR 497

Court of Appeal


CITATION: Fordyce v Fordham & Anor [2006] NSWCA 274
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 30 August 2006
 
JUDGMENT DATE: 
5 October 2006
JUDGMENT OF: Beazley JA at 1; Santow JA at 2; McColl JA at 4
DECISION: 1.Grant leave to appeal. 2.Claimant to file a Notice of Appeal in the form of the draft Notice in the White Book within seven days of judgment. 3.Appeal allowed. 4.Set aside the orders made by Justice Nicholas on 22 December 2005 and in lieu thereof order each party to pay their own costs of Supreme Court proceedings No 4290 of 2005. 5.Each party to pay their own costs of the Appeal. 6.The opponents to have leave to file and serve written submissions, limited to 2 pages, concerning the costs of 23 November 2005 within 7 days of judgment with the claimant to file and serve any submissions, limited to 2 pages, in response within a further 7 days.
CATCHWORDS: PRACTICE AND PROCEDURE - COSTS - interlocutory proceedings – appropriate costs orders where proceedings dismissed without proceeding to final determination - Civil Procedure Act 2005 s98 - Uniform Civil Procedure Rules 42.19 and 42.20 (D)
LEGISLATION CITED: Access to Neighbouring Land Act 2000
Civil Procedure Act 2005
Land and Environment Court Act 1979
Supreme Court Act 1970
District Court Rules 1973
Federal Court Rules
High Court Rules 1952 (Cth)
Supreme Court Rules 1970
Supreme Court Rules (Qld) 1981
Uniform Civil Procedure Rules 2005
CASES CITED: Abigroup Contracts Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181; (2005) 21 BCL 12
Austcorp Finance and Leasing Pty Ltd v Thomas (Supreme Court of Queensland, unreported, 23 August 1991)
Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621
Australian Security Commission v Aust-Home Investments Ltd & Ors (1993) 44 FCR 194
Corporation of Burford v Lenthall (1743) 2 Atk 551; 26 ER 731
Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302
Furber v Stacey & Anor [2005] NSWCA 242
Grundy v Lewis (Federal Court of Australia, unreported, 28 May 1998)
House v The King [1936] HCA 40; (1936) 55 CLR 499
Leicester v Walton (Supreme Court of New South Wales, Court of Appeal, unreported, 22 November 1995)
Newcastle Wallsend Coal Company Pty Ltd v Industrial Relations Commission of New South Wales & Anor [2006] NSWCA 129
O’Neill v Mann [2000] FCA 1680
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia & Anor; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Richmond River Council v Oshlack (1996) 39 NSWLR 622
South-East Queensland Electricity Board v Australian Telecommunications Commission (Federal Court of Australia, unreported, 10 February 1989)
J T Stratford…

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AGLC
Fordyce v Fordham [2006] NSWCA 274
Case
[2006] NSWCA 274
Decision Date

CaseChat Overview and Summary

The appeal concerned the appropriate costs orders to be made following the dismissal of proceedings without a final determination. The parties were the claimant and the opponents, and the matter came before the Court of Appeal of New South Wales.

The central legal issue was whether the primary judge erred in ordering the claimant to pay the opponents' costs of the Supreme Court proceedings, given the circumstances of the dismissal. This involved considering the application of section 98 of the *Civil Procedure Act 2005* and rules 42.19 and 42.20 of the *Uniform Civil Procedure Rules*.

The Court of Appeal allowed the appeal, setting aside the primary judge's costs order. The Court reasoned that in circumstances where proceedings are dismissed before a final hearing, and particularly where there may be a degree of shared responsibility for the proceedings not reaching that stage, an order for each party to bear their own costs is often the more appropriate and just outcome. This approach acknowledges the complexities and potential for interlocutory disputes to contribute to the ultimate resolution without a full trial.

Consequently, the Court ordered that each party was to pay their own costs of the Supreme Court proceedings and the appeal. Further directions were given regarding written submissions on the costs of a specific hearing on 23 November 2005.

Orders

Orders of the court

1.Grant leave to appeal. 2.Claimant to file a Notice of Appeal in the form of the draft Notice in the White Book within seven days of judgment. 3.Appeal allowed. 4.Set aside the orders made by Justice Nicholas on 22 December 2005 and in lieu thereof order each party to pay their own costs of Supreme Court proceedings No 4290 of 2005. 5.Each party to pay their own costs of the Appeal. 6.The opponents to have leave to file and serve written submissions, limited to 2 pages, concerning the costs of 23 November 2005 within 7 days of judgment with the claimant to file and serve any submissions, limited to 2 pages, in response within a further 7 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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