Ross v Gordon (No 2)

The Supreme Court of the Australian Capital Territory, constituted by McCallum CJ, Baker and McWilliam JJ, heard an appeal concerning the distribution of an estate following the death of Ms Olga Hart. The appellant, Ms Hart's former de facto partner, appealed a decision of Loukas-Karlsson J which dismissed his proceedings and ordered him to pay costs. The dispute centred on the appellant's contention that certain cheques issued by the deceased did not create a debt owed by the Estate, and on the appropriate costs orders for the litigation.

The legal issues before the Court of Appeal were whether the primary judge had erred in narrowly construing the scope of a remittal from a previous Court of Appeal decision, specifically regarding the appellant's claim for declaratory relief. The second issue was whether the primary judge had miscarried her discretion in relation to the award of costs. The appellant argued that the remittal should have encompassed his claim for a declaration that the cheques did not create a debt, and that he should be awarded costs for the proceedings and appeals.

The Court found that the primary judge had not erred in determining that the remittal order did not extend to a claim for declaratory relief, as this relief had not been sought in the Court of Appeal and was not within the scope of the remittal. However, the Court agreed with the appellant that the primary judge had erred in her approach to costs. The Court reasoned that given the mixed success of the parties and the intention that costs should be "in the cause", the appropriate order was for each party to bear their own costs for the entirety of the litigation, including the initial proceedings, the previous appeal, and the current appeal.

Consequently, the appeal was allowed in part. Order 2 of the primary judge's costs order of 20 October 2022 was set aside. In its place, the Court ordered that each party was to pay their own costs of the proceeding SC 80 of 2019, and each party was to pay their own costs of the appeal proceedings CA 19 of 2021 and CA 63 of 2022.