Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: NL v AL [2013] NSWCA 224 Hearing dates: 7 May 2013 Decision date: 22 July 2013 Before: Meagher JA (at [1]; Barrett JA (at [2]); Emmett JA (at [35]) Decision: 1. Appeal allowed in part.
2. Vary the costs orders of 22 May 2012 by adding the following Order 1(v):
"(1)(v). The costs ordered by Orders (1)(iii) and (1)(iv) exclude costs of or incidental to A's abandoned collateral agreement claim, including the costs of the pleading and any evidence prepared by A in relation to that claim relied upon at the hearing, but not including any time occupied in relation to that issue at the hearing."
3. That the appellant pay the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PROCEDURE - costs - appeal against certain costs orders including for assessment on an indemnity basis - whether discretion as to costs miscarried - no issue of principle Cases Cited: A v N [2012] NSWSC 354
A v N [2012] NSWSC 549
Calderbank v Calderbank [1975] 3 WLR 586
Fowdh v Fowdh (unreported, NSWCA, 4 November 1993)
House v R [1936] HCA 40; (1936) 55 CLR 499
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626Category: Principal judgment Parties: NL - Appellant
AL - RespondentRepresentation: S S Ahmed - Appellant
A F Fernon - Respondent
Buttar, Caldwell & Co - Appellant
O'Neill Marengo - Respondent
File Number(s): 2012/191510 Decision under appeal
- Citation:
- [2012] NSWSC 549
- Date of Decision:
- 2012-05-22 00:00:00
- Before:
- Ward J
- File Number(s):
- 2009/287664
Judgment
MEAGHER JA: I agree for the reasons given by Barrett JA that the orders his Honour proposes should be made.
BARRETT JA: This appeal is brought by leave in respect of costs orders made by Ward J (as she then was) in Equity Division proceedings determined in 2012. Her Honour delivered two judgments. The first (A v N [2012] NSWSC 354, 13 April 2012) dealt with substantive issues. The second was a costs judgment: A v N [2012] NSWSC 549 (22 May 2012)
There were three parties to the proceedings. They were referred to by the primary judge as A, N and E. The first of them (A, the second wife of E) was the plaintiff and first cross-defendant. The second (N, the daughter of E from his first marriage) was the first defendant and cross-claimant. The third (E) was the second defendant and second cross-defendant.
The outcome in the proceedings was as follows:
(1) A was…
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- AGLC
- Nl v Al [2013] NSWCA 224
- Case
- [2013] NSWCA 224
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge had erred in the exercise of their discretion regarding the costs orders. Specifically, the court considered whether the costs orders made were appropriate in light of the circumstances of the case, including the abandonment of a collateral agreement claim by the respondent, AL.
The Court of Appeal allowed the appeal in part. It varied the costs orders of 22 May 2012 by adding a specific order that the costs previously ordered exclude the costs of or incidental to AL's abandoned collateral agreement claim. This exclusion encompassed the costs of the pleading and any evidence prepared by AL in relation to that claim that was relied upon at the hearing, but it did not include time occupied at the hearing in relation to that issue. The appellant, NL, was ordered to pay the respondent's, AL's, costs of the appeal.
Orders
Orders of the court
1. Appeal allowed in part.
2. Vary the costs orders of 22 May 2012 by adding the following Order 1(v):
"(1)(v). The costs ordered by Orders (1)(iii) and (1)(iv) exclude costs of or incidental to A's abandoned collateral agreement claim, including the costs of the pleading and any evidence prepared by A in relation to that claim relied upon at the hearing, but not including any time occupied in relation to that issue at the hearing."
3. That the appellant pay the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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