Rexstraw v Johnson (No 2)

This matter concerned appeals from decisions of Hogan ADCJ, heard together by Sheller and Tobias JJA. The appeals involved complex issues of contribution between parties and the apportionment of costs, particularly in light of a settlement offer made by way of a Calderbank letter that had expired. The dispute centred on the allocation of liability and associated costs among several appellants and respondents following an initial judgment.

The primary legal issues before the court were the appropriate apportionment of costs on appeal, the effect of an expired settlement offer on cost orders, and the determination of contribution between the parties in respect of their total liability to the plaintiffs. The court was required to consider whether the terms of the expired settlement offer should influence the final cost orders and how to fairly distribute the liability for costs amongst the various parties involved in the consolidated appeals.

The court allowed one appeal, ordering the respondent to pay one-third of the appellant's costs of that appeal, with a potential certificate under the Suitor's Fund Act. In another appeal, one appellant's appeal was dismissed, and that appellant was ordered to pay the first respondents' costs, while the same appellant's appeal against other respondents was allowed, with each party to bear their own costs. A third appeal was dismissed, with the appellants ordered to pay the respondents' costs. Crucially, the court set aside certain orders regarding cross-claims and entered judgment, apportioning the total liability to the plaintiffs between the appellants in specific percentages: 33.5% to the appellant in CA 40943/02, 42.5% to the appellants in CA 40944/02, and 24% to the appellants in CA 40975/02.