Goulding v Kirby

In *Goulding v Kirby*, the claimants (appellants) and the opponent (respondent) appeared before Hodgson and Santow JJA of the Court of Appeal. The dispute concerned the costs of an appeal and an application for leave to appeal, following the Court of Appeal's decision to treat the appeal as incompetent.

The primary legal issues before the Court were whether the respondent was entitled to costs of the appeal, given the appeal was treated as incompetent and the respondent had challenged its competency outside the prescribed time limit. The Court also had to consider the effect of a letter of offer made by the respondent regarding costs and whether to make any order otherwise than that the respondent, having challenged the competency of the appeal late, would be disentitled to costs.

The Court reasoned that the respondent's challenge to the competency of the appeal, though late, was ultimately successful in leading to the appeal being treated as incompetent. Despite the lateness of the challenge, the Court found that the respondent was not entirely disentitled to costs. The letter of offer, which did not explicitly waive costs for the application for leave to appeal, was deemed too late to justify indemnity costs. The Court also acknowledged the duplication in preparing appeal materials, which had been prepared before the competency challenge.

Consequently, the Court ordered that the claimants pay the opponent's costs of the summons for leave to appeal and the costs of the appeal, with specific exclusions. The opponent was ordered to pay a portion of the claimants' costs of the appeal, limited to the preparation of certain documents, and the claimants' costs of a specific notice of motion. No order was made as to the costs of the submissions concerning costs.