"N" v "A"

[2012] NSWCA 318

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

"N" v "A" [2012] NSWCA 318

Hearing dates:

28 September 2012

Decision date:

28 September 2012

Before:

Meagher JA (at [1] and [24], Barrett JA (at [2])

Decision:

(1)Grant leave to appeal against orders (1)(iii) and (1)(iv) made by Ward J on 22 May 2012.

(2)Otherwise dismiss the summons seeking leave to appeal.

(3)Order that the costs of the summons for leave to appeal be costs in the appeal.

Catchwords:

LEAVE TO APPEAL - appeal against costs orders only - where Calderbank offers and other proposals and requests made - question of principle raised - serious question whether certain of the orders were plainly unreasonable and discretion miscarried - substantial costs sums at stake - as to other orders, error, if any, goes only to weight afforded to factors taken into account

Legislation Cited:

Supreme Court Act 1970, s 101(2)(c)

Cases Cited:

"A" v "N" [2012] NSWSC 354
"A" v "N" [2012] NSWSC 549
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
Maiden v Maiden [1909] HCA 16; (1909) 7 CLR 727

Category:

Principal judgment

Parties:

"N" - Applicant
"A" - First Respondent
"E" - Second Respondent

Representation:

Mr S S Ahmed - Applicant
Mr D M Roberts - First Respondent
Mr C Zucker - Second Respondent
Buttar, Caldwell & Co - Applicant
Hunt & Hunt - First Respondent
Zucker Legal - Second Respondent

File Number(s):

2012/191519

Judgment

1. MEAGHER JA: I will ask Justice Barrett to give the first judgment.

1. BARRETT JA: In complex proceedings determined in April 2012 ("A" v "N" [2012] NSWSC 354), Ward J decided that "A" was entitled to declaratory relief and an order for specific performance against "N"; that "A" was not entitled to certain other relief against "N"; that "N" was not entitled to declaratory relief against "A"; and that "A" was not entitled to declaratory relief against "E". The claim involving "E" was, in a real sense, subsidiary and, as her Honour said in her costs judgment of 18 May 2012 ("A" v "N" [2012] NSWSC 549), "as between "A" and "N" it was "A" who was substantially successful in her claim".

1. Orders for costs were made as follows as between "A" and "N":

Order that "N" pay "A"'s costs of the proceedings up to 10 March 2009 on the ordinary basis (order (1)(i));

Order that "A" pay "N"'s costs of the proceedings from 11 March 2009 to 1 May 2009 on the indemnity basis (order (1)(ii));

Order that "N" pay "A"'s costs of the proceedings from 2 May 2009 on the ordinary basis (order (1)(iii));

Order that "N" pay "A"'s costs of the cross-claim on the ordinary basis (order (1)(iv)).

1. Thus, the indemnity costs order in favour of "N" and against "A" from 11 March 2009 was cut short on 2 May 2009 and later reversed

1. In relation to aspects involving "E", there were costs orders as follows:

Order that "A" pay "E"'s…