Furber v Stacey

Case [2005] NSWCA 242


CITATION:

Furber v. Stacey & Anor. [2005] NSWCA 242

HEARING DATE(S):

4 May 2005

 
JUDGMENT DATE: 


25 July 2005

JUDGMENT OF:

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

CASES CITED:

Allman v. Daly No.2 [1959] VR 614
Altamura v Victorian Railways Commissioners (1974) VR 33
Earnshaw v Loy (No 2) [1959] VR 52
Elgindata Ltd, In re [No. 2] [1992] 1 WLR 1207
Fennel v Supervision and Engineering Services (1988) 47 SASR 6
GEC Marconi Systems Pty. Ltd. v. BHP Information Technology Pty. Ltd. [2003] FCA 688, 201 ALR 55
Gladstone Park Shopping Centre Pty. Ltd. v. Wills (1984) 6 FCR 496, 59 ALR 109, Gold Coast Bakeries (Qld.) Pty. Ltd. v. Heat Control Pty. Ltd. [1992] 1 QdR 162
Gould v Vaggelas (1985) 157 CLR 215
Johnson Tyne Foundry v Maffra Corporation (1948) 77 CLR 544
Johnson v. Ribbins [1977] I WLR 1548
Lackersteen v Jones (No.2) (1988) 93 FLR 442
Latoudis v Casey (1990) 170 CLR 534
Leaver v. Golsby [1964-5] NSWR 1833
Lombard Insurance Co. (Australia) Ltd. v. Pastro (1994) 175 LSJS 448
Oshlack v Richmond River Council (1998) 193 CLR 72
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Salmon, In Re (1889) 42 Ch.D. 351
Statham v. Shephard (No.2) (1974) 23 FLR 244

PARTIES:

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 COURT JUDICIAL OFFICER:

Christie DCJ




                          CA 40470/04
                          DC 8617/99

                          HODGSON JA
                          BASTEN JA
                          EINSTEIN J

                          Monday 25 July 2005
FURBER V. STACEY & ANOR

Continue reading Furber v Stacey

Sign in free to access the full text

Details
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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.