Furber v Stacey

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.