Richards v Gray No 2 - [2014] NSWCA 83

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Richards v Gray No 2 [2014] NSWCA 83
Hearing dates: On the papers
Decision date: 28 March 2014
Before: Bathurst CJ at [1], Beazley P at [27], McColl JA at [28], Basten JA at [29], Meagher JA at [30]
Decision:
(1)Set aside Orders 1A, 6 and 7 of the orders made by the primary judge and entered on 16 December 2011.
(2)The defendant pay any part of the judgment amount not yet paid to the Trust Company Limited pursuant to s 77(3)(b) of the Uniform Civil Procedure Act 2005 (NSW).
(3)Set aside the order for costs made by the primary judge contained in par [38] of her judgment of 13 April 2012 and in lieu thereof make the following orders:
(a)Subject to subpars (b) and (c) hereof, order that the defendant pay the plaintiff's costs of the proceedings.
(b)Order that the plaintiff pay the defendant's costs of and incidental to the hearing of 16 August 2011.
(c)Order that the defendant pay one half of the plaintiff's costs of the proceedings from 19 August 2011 to 8 December 2011.
(d)Order that the respondent pay 50% of the appellant's costs of the appeal.
(e)If eligible the respondent be granted a certificate under s 6B(2) of the Suitor's Fund Act 1951.
(f)Cross-appeal dismissed.
(g)Order that the respondent pay the appellant's costs of the cross-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: COSTS - trial costs - discretion of trial judge
COSTS - appeal costs - general rule that costs follow event - multiple issues - partial success - apportionment
Legislation Cited: Suitor's Fund Act 1951 (NSW), s 6B(2)
Uniform Civil Procedure Act 2005 (NSW), s 77(3)(b)
Cases Cited: Gray v Richards [2011] NSWSC 877
Gray v Richards (No 3) [2012] NSWSC 344
Richards v Gray [2013] NSWCA 402
Texts Cited: -
Category: Costs
Parties: Corey Richards (Appellant/Cross Respondent)
Rhiannon Gray by her Tutor Kathleen Anne Gray (Respondent/Cross Appellant)
Representation: Counsel:
P J Deakin QC / B A P Kelleher (Appellant / Cross Respondent)
Dr A S Morrison SC / I J McGillicuddy (Respondent / Cross Appellant)
Solicitors:
T L Lawyers (Appellant / Cross Respondent)
Beilby Poulden Costello (Respondent/ Cross Appellant)

File Number(s): 2012/9520
Publication restriction: -
Decision under appeal

Jurisdiction:

9111

Citation:

Gray v Richards [2011] NSWSC 877
Gray v Richards (No 2) [2011] NSWSC 1502
Gray v Richards (No 3) [2012] NSWSC 344

Before:

McCallum J

File Number(s):

2009/338685

Judgment

BATHURST CJ: This judgment should be read in conjunction with the judgment of this Court of 2 December 2013, Richards v Gray [2013] NSWCA 402 (the 2…

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 Richards v Gray No 2

Details

AGLC: Richards v Gray No 2 [2014] NSWCA 83
Case: [2014] NSWCA 83
Decision Date: 28 March 2014

CaseChat Overview and Summary

The appeal concerned the costs orders made by the primary judge in proceedings between Richards (the plaintiff) and Gray (the defendant). The dispute involved multiple issues, and the primary judge had made specific orders regarding the payment of the judgment amount and the allocation of costs. The appeal was heard by Bathurst CJ, Beazley P, McColl, Basten, and Meagher JJA.

The court was required to determine whether the primary judge had erred in exercising their discretion regarding the costs of the proceedings. This involved considering the general rule that costs follow the event, the principle of partial success, and the appropriate apportionment of costs when multiple issues were litigated. The court also had to consider the costs of the appeal itself and a cross-appeal.

The Court of Appeal set aside the primary judge's orders concerning the payment of the judgment amount and the costs of the proceedings. In lieu of the primary judge's costs order, the Court of Appeal ordered that the defendant pay the plaintiff's costs of the proceedings, subject to specific adjustments. These adjustments included the plaintiff paying the defendant's costs for a particular hearing, the defendant paying one half of the plaintiff's costs for a defined period, and the respondent (the plaintiff in the appeal) paying 50% of the appellant's (the defendant in the appeal) costs of the appeal. The court also made orders regarding a certificate under the Suitor's Fund Act 1951, dismissed the cross-appeal, and ordered the respondent to pay the appellant's costs of the cross-appeal.

Orders

Orders of the court

(1)Set aside Orders 1A, 6 and 7 of the orders made by the primary judge and entered on 16 December 2011.

(2)The defendant pay any part of the judgment amount not yet paid to the Trust Company Limited pursuant to s 77(3)(b) of the Uniform Civil Procedure Act 2005 (NSW).

(3)Set aside the order for costs made by the primary judge contained in par [38] of her judgment of 13 April 2012 and in lieu thereof make the following orders:

(a)Subject to subpars (b) and (c) hereof, order that the defendant pay the plaintiff's costs of the proceedings.

(b)Order that the plaintiff pay the defendant's costs of and incidental to the hearing of 16 August 2011.

(c)Order that the defendant pay one half of the plaintiff's costs of the proceedings from 19 August 2011 to 8 December 2011.

(d)Order that the respondent pay 50% of the appellant's costs of the appeal.

(e)If eligible the respondent be granted a certificate under s 6B(2) of the Suitor's Fund Act 1951.

(f)Cross-appeal dismissed.

(g)Order that the respondent pay the appellant's costs of the cross-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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Richards v Gray No 2 [2014] NSWCA 83
Hearing dates:	On the papers
Decision date:	28 March 2014
Before:	Bathurst CJ at [1], Beazley P at [27], McColl JA at [28], Basten JA at [29], Meagher JA at [30]
Decision:	(1)Set aside Orders 1A, 6 and 7 of the orders made by the primary judge and entered on 16 December 2011. (2)The defendant pay any part of the judgment amount not yet paid to the Trust Company Limited pursuant to s 77(3)(b) of the Uniform Civil Procedure Act 2005 (NSW). (3)Set aside the order for costs made by the primary judge contained in par [38] of her judgment of 13 April 2012 and in lieu thereof make the following orders: (a)Subject to subpars (b) and (c) hereof, order that the defendant pay the plaintiff's costs of the proceedings. (b)Order that the plaintiff pay the defendant's costs of and incidental to the hearing of 16 August 2011. (c)Order that the defendant pay one half of the plaintiff's costs of the proceedings from 19 August 2011 to 8 December 2011. (d)Order that the respondent pay 50% of the appellant's costs of the appeal. (e)If eligible the respondent be granted a certificate under s 6B(2) of the Suitor's Fund Act 1951. (f)Cross-appeal dismissed. (g)Order that the respondent pay the appellant's costs of the cross-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:	COSTS - trial costs - discretion of trial judge COSTS - appeal costs - general rule that costs follow event - multiple issues - partial success - apportionment
Legislation Cited:	Suitor's Fund Act 1951 (NSW), s 6B(2) Uniform Civil Procedure Act 2005 (NSW), s 77(3)(b)
Cases Cited:	Gray v Richards [2011] NSWSC 877 Gray v Richards (No 3) [2012] NSWSC 344 Richards v Gray [2013] NSWCA 402
Texts Cited:	-
Category:	Costs
Parties:	Corey Richards (Appellant/Cross Respondent) Rhiannon Gray by her Tutor Kathleen Anne Gray (Respondent/Cross Appellant)
Representation:	Counsel: P J Deakin QC / B A P Kelleher (Appellant / Cross Respondent) Dr A S Morrison SC / I J McGillicuddy (Respondent / Cross Appellant) Solicitors: T L Lawyers (Appellant / Cross Respondent) Beilby Poulden Costello (Respondent/ Cross Appellant)
File Number(s):	2012/9520
Publication restriction:	-
Decision under appeal	Jurisdiction: 9111 Citation: Gray v Richards [2011] NSWSC 877 Gray v Richards (No 2) [2011] NSWSC 1502 Gray v Richards (No 3) [2012] NSWSC 344 Before: McCallum J File Number(s): 2009/338685