Hodgson JA at 1; Basten JA at 56; Einstein J at 88
DECISION:
1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed to the extent of substituting, for the costs orders made by the primary judge (except that relating to reserved costs) the following order: Mrs. Furber to pay Mr. Stacey's costs of the proceedings and one-quarter of the Canine Council's costs of the cross-claim, these costs in both cases to include the costs of the costs argument before the primary judge and to be on an indemnity basis from 10 November 2003. 3. Appeal otherwise dismissed. 4. The Canine Council to pay Mrs. Furber's costs of the application and appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.
CATCHWORDS:
PROCEDURE - COSTS - Costs of cross-claim - Cross-claimant fails because plaintiff's claim against cross-claimants fails - Whether plaintiff should pay cross-defendant's costs.
LEGISLATION CITED:
District Court Rules Part 21 rule 8, Part 39A rule 9
Helen Munro Furber - claimant Wes Stacey - 1st opponent Rooyal New South Wales Canine Council Limited - 2nd opponent
FILE NUMBER(S):
CA 40470/04
COUNSEL:
Mr. T.E.F. Hughes QC with Mr. S. Doctor for the claimant No appearance for the first opponent Mr. P.W. Gray SC with Mr. M. Richardson for the second opponent
SOLICITORS:
Phillips Fox, Sydney for claimant Harrington Maguire & O'Brien, Sydney for 1st opponent Gilbert & Tobin, Sydney for 2nd opponent
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 8617/99
LOWER COURTJUDICIAL OFFICER:
Christie DCJ
CA 40470/04 DC 8617/99
HODGSON JA BASTEN JA EINSTEIN J
Monday 25 July 2005
FURBER V. STACEY & ANOR
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.
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AGLC
Furber v Stacey [2005] NSWCA 242
Case
[2005] NSWCA 242
Decision Date
CaseChat Overview and Summary
The dispute in *Furber v Stacey* concerned the costs of proceedings involving a plaintiff, Mrs. Furber, a defendant and cross-claimant, Mr. Stacey, and a third party, the Canine Council. The appeal was heard in the Court of Appeal of New South Wales.
The primary legal issue before the Court of Appeal was whether the plaintiff, Mrs. Furber, should be ordered to pay the costs of the cross-defendant, the Canine Council, given that the plaintiff's claim against the cross-claimants (Mr. Stacey and the Canine Council) had failed. A related issue was the basis on which costs should be awarded, specifically whether they should be on an ordinary or indemnity basis.
The Court of Appeal reasoned that the usual rule that a successful party should recover their costs applied. However, it also considered the specific circumstances of the cross-claim and the conduct of the parties. The court determined that while the plaintiff's claim against the cross-claimants had failed, the cross-claim itself had also failed. The court found that the plaintiff should bear a portion of the Canine Council's costs of the cross-claim, but not all of them, reflecting the fact that the cross-claim had not been entirely successful. The court also considered that an indemnity basis for costs was warranted from a particular date due to the nature of the dispute and the conduct of the parties.
The Court of Appeal allowed the appeal in part, substituting the primary judge's costs orders. Mrs. Furber was ordered to pay Mr. Stacey's costs of the proceedings and one-quarter of the Canine Council's costs of the cross-claim, both on an indemnity basis from 10 November 2003. The Canine Council was ordered to pay Mrs. Furber's costs of the application and appeal.
Orders
Orders of the court
1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed to the extent of substituting, for the costs orders made by the primary judge (except that relating to reserved costs) the following order: Mrs. Furber to pay Mr. Stacey's costs of the proceedings and one-quarter of the Canine Council's costs of the cross-claim, these costs in both cases to include the costs of the costs argument before the primary judge and to be on an indemnity basis from 10 November 2003. 3. Appeal otherwise dismissed. 4. The Canine Council to pay Mrs. Furber's costs of the application and appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.