Gordon and Gotch (Australasia) Limited v Cox

[1923] HCA 8

32 CLR 465

GORDON &GOTCH (AUSTRALASIA) LIMITED APPELLANT COX

RESPONDENT. Practice-High Court-Costs-Taxation-Costs of appeal-Costs of opposing motion.

for special leave.

Costs of a motion for special leave to appeal to the High Court are costs of the appeal,

Upon an appeal to the High Court by special leave an order was made that the respondent's costs of the appeal should be taxed, and paid by the appellant. The respondent had voluntarily appeared upon the motion for special leave (IN CHAMBERS.) and unsuccessfully opposed it, but no order had been made as to the costs of the

32 CLR 466

Held, that the respondent was entitled to his taxed costs of the motion for special leave if he established that such costs had not been incurred unneces sarily or through over-caution. (AUSTRAL-

REVIEW of taxation. ASIA) LTD.

An appeal had been brought by special leave by Gordon &Gotch Cox.

(Australasia) Ltd. to the High Court, Frederick John Cox being the respondent. The appeal was dismissed, and the respondent's costs of the appeal were ordered to be taxed and to be paid by the appel- lant 1. The respondent had appeared on the motion, although no notice of the motion had been served on him, and had opposed the granting of special leave. The respondent brought in his bill of costs for taxation, and included in it (items 1 to 7) were the costs incurred in opposing the granting of special leave. These costs the Registrar disallowed.

The respondent now applied by summons to review the decision of the Registrar, and the summons was heard by Starke J.

Other material facts are stated in the judgment hereunder. Home, for the respondent, in support. The managing clerk of the appellant's solicitors, for the appellant to oppose.

Cur. adv. vult.

STARKE J. delivered the following written judgment :- This was a summons to review taxation. An appeal had been brought by Gordon &Gotch Ltd. to this Court pursuant to an order giving special leave to appeal. The appeal was ultimately dismissed, and Cox's "costs of this appeal" were ordered to be taxed, and paid by the appellant. Cox appeared voluntarily on the motion for special leave to appeal, and opposed it. The Court gave leave, but subject to a rather onerous undertaking. Nothing was provided as to costs in the order giving leave to appeal. Now Cox claims that his costs on this motion are part of the costs of appeal to which he is entitled under the order dismissing the appeal.

1(1923) 31 C.L.R., 370. 32 CLR 467

Costs of appeal means " extra expense incurred by reason of the appeal being taken" (see Kevan's v. Joyce 1 ). And appellants obtaining orders for "costs of appeal are allowed, on taxation in this Court, the costs of any motion for special leave to appeal unless the Court has otherwise provided. This, I think, is right, for the order for special leave to appeal is, in these cases, a necessary step in the appeal it is the first step in the proceedings by way of appeal, and is an extra expense incurred by reason of the appeal being taken." The proceedings in appeal do not here start, as in cases where the appeal is of right, by the notice of appeal, but with the application to the Court for leave to appeal.

It is difficult, if the appellant is entitled to his costs of motion for leave to appeal under an order for costs of appeal, to deny that a respondent who opposes the motion on notice is similarly entitled to his costs of SO opposing it, in cases in which the "costs of appeal are awarded to him. The fact that the respondent voluntarily opposes the motion for leave to appeal does not, in my opinion, narrow the meaning of the words "costs of appeal." But it does,

I think, throw upon the party who voluntarily appears the duty of satisfying the taxing officer that the costs were not incurred unneces- sarily or through over-caution. The burden is no light one. But as I was a member of the Court which granted the leave to appeal and heard the appeal, I will not remit the matter to the taxing officer to inquire whether the costs in this case were reasonably and properly incurred, for I have no doubt that they were. The circum- stances were peculiar and special. Gordon &Gotch Ltd. had reserved to it in the order against which it desired to appeal general liberty to amend its pleadings. The respondent was, I think, well justified in appearing and insisting that supposed matters of law should not be decided on pleadings which might at any time be amended. An undertaking was required from the appellant abandoning this leave to amend SO far as any matters were brought to appeal. Ultimately the Court held that the appeal was due to mis- apprehension of the decision of the Supreme Court, and to faulty pleading, and by consent restored leave to amend. But the inter- vention of the respondent was clearly justified, and ought perhaps to

1(1897) 1 I.R., 1, at p. 5. 32 CLR 468

have induced the Court, in the first instance, to refuse leave to

I allow the summons to review taxation, and direct the Principal (AUSTRAL-

Registrar that the items nos. 1 to 7 mentioned in the bill of costs ASIA) LTD.

ought, in point of principle, to be allowed, and remit to him for the purpose of considering the amount that should be allowed in respect of each item. Appellant Gordon &Gotch Ltd. to pay £1 1s. costs of this summons.

Order accordingly. Solicitors for the respondent, Home &Wilkinson. Solicitors for the appellant, Williams &Matthews.

[HIGH COURT OF AUSTRALIA.]

FLANAGAN AND ANOTHER

DEFENDANTS,

THE NATIONAL TRUSTEES, EXECUTORS

AND AGENCY COMPANY OF AUS-

RESPONDENTS.

TRALASIA LIMITED AND OTHERS

PLAINTIFF AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

MELBOURNE, Will-Interpretation-" Die without leaving issue "-Death at any time-Gift to

children for life with remainder to their children-Survivorship-Death without issue-No disposition of accrued shares-Residue-Intestacy---Wills Act 1915 SYDNEY,

(Vict.) (No. 2749), sec. 23. Aug. 9.

By his will a testator, after disposing of his household effects, gave all the residue of his personal estate and all his real estate to trustees upon trust to apply the income to the support and maintenance of his wife and children