NL v AL - [2013] NSWCA 224

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 626
Category: Principal judgment
Parties: NL - Appellant
AL - Respondent
Representation: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NL v AL

Details

AGLC: Nl v Al [2013] NSWCA 224
Case: [2013] NSWCA 224
Decision Date: 22 July 2013

CaseChat Overview and Summary

The appeal concerned costs orders made by the primary judge. The appellant, NL, sought to appeal against certain costs orders, including an order for assessment on an indemnity basis, arguing that the discretion as to costs had miscarried. There was no issue of principle raised in the appeal.

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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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 626
Category:	Principal judgment
Parties:	NL - Appellant AL - Respondent
Representation:	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