Hutchison Construction Services Pty Ltd v Fogg (No 2)

[2016] NSWCA 190

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hutchison Construction Services Pty Ltd v Fogg (No 2) [2016] NSWCA 190

Hearing dates:

On the papers

Decision date:

04 August 2016

Before:

Beazley P;
Meagher JA;
Leeming JA

Decision:

1. Set aside order 1 made on 10 June 2015 and in lieu thereof give judgment to Mr Fogg as against Hutchison Constructions Services Pty Ltd in the sum of $1,002,734.18.

 

2. Hutchison Constructions Services Pty Ltd to pay the costs of Mr Fogg and Les Quatre Musketeers Pty Ltd of the appeal.

 

3. No order as to the costs of the cross-appeal, with the intent that the parties bear their own costs of the cross-appeal.

 4. Order that Mr Fogg pay the costs of Hutchison Construction Services Pty Ltd in respect of the application for costs of the appeal and cross-appeal.

Catchwords:

COSTS – limited success on cross-appeal – cross-appellant obtains larger judgment, but most grounds fail – no order as to costs of cross-appeal

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Cases Cited:

Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135

Category:

Costs

Parties:

Hutchison Construction Services Pty Ltd (Appellant/ First Cross Respondent)
Mr Arthur Fogg (First Respondent/Cross Appellant)
Les Quatre Musketeers Pty Ltd t/as Plastamasta South Coast (Second Respondent/Second Cross Respondent)

Representation:

Counsel:
D Hooke SC, G Smith (Mr Arthur Fogg)

  Solicitors:
Moray & Agnew (Hutchison Construction Services Pty Ltd)
Lough & Wells (Mr Arthur Fogg)

File Number(s):

2015/185608

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 648

Date of Decision:

29 May 2015

Before:

Johnson J

File Number(s):

2011/316330; 2012/241074

Judgment

1. THE COURT: By judgment given on 21 June 2016, this Court dismissed Hutchison’s appeal and allowed Mr Fogg’s cross-appeal in part: Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135. Directions were made for the filing of an agreed calculation of the judgment sum, or short submissions in default of agreement, and submissions as to costs. That has now occurred. It is agreed that Mr Fogg is entitled to a judgment of $1,002,734.18, and that the appellant should pay the respondents’ costs of the appeal. The only issue arising for determination is the costs of the cross-appeal.

2. Mr Fogg submits that the cross-appeal was allowed in part, and his position was substantially improved. Although he was unsuccessful on a number of issues, he submits that the judgment was “materially increased” by reason of the ground on which he succeeded, adding, “In other words, the cross-appeal enjoyed material success”. He submits that this is not a case where the rule that costs follow the event should be displaced.

3. Hutchison submits that the appropriate costs order is that the parties bear their own costs of the cross-appeal, on the basis that some of the 11 grounds were abandoned prior to or at the commencement of the hearing, and all of the grounds which were pressed were rejected, save for the fact that this Court found that the primary judge had erred in relation to future economic loss by allowing $480 net per week rather than $580 net per week.

4. It is true that Mr Fogg enjoyed some success on his cross-appeal, but that success was modest. The judgment to which he is entitled has increased from $944,255.03 to $1,002,734.18 – that is, slightly more than 6%. The materiality of that success may be assessed by reference to the unsuccessful challenges advanced by Mr Fogg. Mr Fogg’s challenge to the finding of contributory negligence would, had it succeeded, have increased the judgment by $176,953.09. Mr Fogg’s challenge to future medical expenses sought an amount of $214,760.55, approximately $100,000 more than the amount ordered. His unsuccessful challenge to the dismissal of a claim for future care was calculated at $55,165. The value of Mr Fogg’s unsuccessful claim for a Bullock or Sanderson order in respect of a trial which occupied more than two weeks is unquantified, but would be very substantial.

5. The evaluation of the modestness of Mr Fogg’s success on the cross-appeal does not turn merely upon the monetary value of the grounds which succeeded and those which failed. The point on which he succeeded was simple, in contrast with the elaborateness of the points on which he failed. In terms of the written submissions, only two paragraphs out of a total of 41 were directed to the single ground of the cross-appeal on which Mr Fogg succeeded.

6. To the extent that Mr Fogg submits that it is sufficient to establish that there has been a material improvement as a result of his limited success on the cross-appeal in order to obtain a favourable costs order, the submission should be rejected. The power to order costs under s 98 of the Civil Procedure Act 2005 (NSW) is not so confined. In any event, the cross-appeal should not be characterised as having enjoyed material success. Whether viewed by reference to the number of grounds which were abandoned or were unsuccessful, or their relative importance in terms of value or legal complexity, his cross-claim was substantially unsuccessful.

7. However, Mr Fogg is correct to submit that the Court should not, in circumstances such as the present, make an order for costs which differentiates between successful and unsuccessful issues. Such an order would be apt to lead to further costs and perhaps further disputation.

8. Having regard to the distinctly limited success achieved by Mr Fogg on his cross-appeal, the appropriate order is that there be no order as to the costs of the cross-appeal.

9. On the only issue arising on the application for costs, Hutchison has been wholly successful. It should have its costs in relation to the costs application.

10. The formal orders of the Court are:

1. Set aside order 1 made on 10 June 2015 and in lieu thereof give judgment to Mr Fogg as against Hutchison Constructions Services Pty Ltd in the sum of $1,002,734.18.

2. Hutchison Constructions Services Pty Ltd to pay the costs of Mr Fogg and Les Quatre Musketeers Pty Ltd of the appeal.

3. No order as to the costs of the cross-appeal, with the intent that the parties bear their own costs of the cross-appeal.

4. Order that Mr Fogg pay the costs of Hutchison Construction Services Pty Ltd in respect of the application for costs of the appeal and cross-appeal.

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Decision last updated: 04 August 2016