Mills v Walsh (Costs)

[2023] NSWCA 97

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mills v Walsh (Costs) [2023] NSWCA 97

Hearing dates:

On the papers; written submissions closed 9 February 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Before:

Bell CJ at [1];
White JA at [2];
Brereton JA at [19]

Decision:

(1) Vary order (2) made on 8 December 2022 to read as follows: “(2)   Order that the appellant and the second respondent pay the first respondent’s costs of the appeal up to and including 6 September 2022 and that the appellant pay the first respondent’s costs of the appeal thereafter.”

Catchwords:

COSTS – Party/Party – Proceedings discontinued or dismissed – Court’s discretion – Proceedings discontinued by one appellant – Where discontinuing appellant by her conduct ratified conduct of solicitors in filing an appeal in her name – Whether fair and reasonable to otherwise order discontinuing appellant not jointly and severally liable for costs up to date of discontinuance – No basis to displace usual order as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), rr 42.19, 51.56

Cases Cited:

Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32

Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274

Category:

Costs

Parties:

David Mills (Appellant)
Haiden Walsh (First Respondent)
Crystal Zhang (Second Respondent)

Representation:

Counsel:

H Woods (Appellant)
N Kabilafkas (Second Respondent)

Solicitors:

JCL Legal (Appellant)
Gerges Law Group (First Respondent)
Juris Cor Legal (Second Respondent)

File Number(s):

2022/9246

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

[2021] NSWDC 655

Date of Decision:

17 December 2021

Before:

Weber SC DCJ

File Number(s):

2019/17715

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant Mr Mills and his estranged wife the second respondent Ms Zhang commenced an appeal in this Court against the first respondent Mr Walsh. Ms Zhang authorised solicitors Coleman & Greig to file a Notice of Intention to Appeal, however, did not respond to the fee proposal and draft Notice of Appeal sent by her solicitors, which was then filed. Whilst there were some communications with her solicitors, Ms Zhang did not clearly and unequivocally give instructions to discontinue the appeal until 2 September 2022. At the outset of the hearing of the substantive appeal on 6 September 2022, the Court made orders granting leave to Ms Zhang to discontinue the proceedings. The appeal was dismissed on 8 December 2022, and Mr Mills – pursuant to leave reserved by the Court when delivering judgment – seeks an order having the effect that Ms Zhang be liable jointly and severally with him for the costs of Mr Walsh, up to and including 6 September 2022.

Held, per White JA at [18] and Brereton JA at [28]; Bell CJ at [1] agreeing):

As to whether Ms Zhang authorised the appeal:

1. Ms Zhang by her conduct ratified the conduct…