French v Smith

In the case of French v Smith, the plaintiff, French, sought to recover costs associated with both the trial and the subsequent appeal from the defendant, Smith. The dispute was heard and determined by the Supreme Court of Victoria. French argued that the costs should follow the event, meaning Smith should bear the costs, while Smith contended that the costs should lie where they fell, meaning each party should bear their own costs.

The court was required to decide whether the principle of costs following the event applied in this case and, if so, how it should be applied. Additionally, the court needed to determine the appropriate date from which penalty interest on the judgment should be calculated, considering payments made by Smith to French and into a joint account held by their solicitors.

The court held that the principle of costs following the event did not apply, and therefore, costs in each case were to lie where they fell. Regarding the penalty interest, the court found that the principal sum upon which it was to be calculated should be the amount paid by Smith to French, not the total amount of the judgment debt. The court also determined that penalty interest should commence from the date of the original judgment, regardless of the subsequent payments made.

The court ordered that Smith pay French the amount of $X, along with penalty interest calculated from the date of the original judgment. Smith was also ordered to pay his own costs of the appeal.