Rosser v Marine Ministerial Corporation No. 2 (Costs)

[1999] NSWCA 214

CITATION:	Rosser v Marine Ministerial Corporation No. 2 (Costs) [1999] NSWCA 214
FILE NUMBER(S):	CA 40608/96
HEARING DATE(S):	By written submissions
JUDGMENT DATE:	1 July 1999
PARTIES :	Michael Lewis Jack Rosser v Marine Ministerial Holding Corporation (Formerly Maritime Services Board of New South Wales) No. 2 Costs
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	1624/93
LOWER COURT JUDICIAL OFFICER:	Young J

COUNSEL:	P L G Brereton SC/M K Meek (Appellant) P M Donohoe QC/F Kunc (Respondent)
SOLICITORS:	S R Wallace & Wallace by their city agents Stewart Cuddy & Mockler (Appellant) English Kearns Coombs Company (Respondent)
CATCHWORDS:	Costs; discretionary judgment of trial judge; impossible to say discretion miscarried; no sufficient reason why costs should not follow the event.
DECISION:	Costs awarded to the appellant. Orders made.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40608/96
ED 1624/93


MEAGHER JA
BEAZLEY JA
FITZGERALD JA

1 July 1999

Michael Lewis Jack ROSSER v MARINE MINISTERIAL HOLDING CORPORATION (formerly MARITIME SERVICES BOARD OF NSW)
No.2 Costs
JUDGMENT

1   MEAGHER JA: I agree with Fitzgerald JA. 2   BEAZLEY JA: I agree with Fitzgerald JA. 3   FITZGERALD JA: When judgment was delivered in this appeal and cross-appeal, costs were left for later consideration at the request of the parties. There are now two costs issues before the Court. 4   By a supplementary notice of cross-appeal, the Board sought an order setting aside the trial judge’s order that it pay Rosser’s costs of the proceedings in the Equity Division and requested this Court to make an order in relation to the costs of those proceedings which is more favourable to the Board. The Board has also asked this Court to make no order with respect to the costs of the appeal and cross-appeal in this Court, or alternatively that the Court award Rosser only some of his costs. The Court upheld Rosser’s appeal and dismissed the Board’s cross-appeal. 5   Both applications by the Board were based on criticisms, made initially by the trial judge and later by this Court, of the manner in which Rosser’s claims were formulated and litigated. Nonetheless, Rosser succeeded before the trial judge in obtaining a judgment for damages against the Board, and he succeeded in this Court in that his damages were increased and the Board’s cross-appeal, except its supplementary cross-appeal with respect to costs, was dismissed. The ordinary rule is that costs follow the award. 6   Other than its supplementary cross-appeal with respect to costs, which is now before the Court the only other matter on which the Board placed any substantial weight was that it had made an offer of settlement to Rosser during the course of the proceeding in the Equity Division. Although the amount offered was less than the damages awarded to Rosser by the trial judge, and of course was less than the amount awarded to him by this Court, the Board sought solace in the fact that Rosser recovered less than he claimed. Further, the difference between the amount offered by the Board and the amount recovered by Rosser is less than the difference between the amount claimed by Rosser and the amount which he has been awarded. 7   In awarding Rosser the costs of the proceedings in the Equity Division, the trial judge exercised a discretionary judgment. No doubt his Honour might have awarded Rosser less than the full amount of his costs because of the manner in which the proceedings were conducted, but it is impossible for this Court to say that his discretion miscarried because he awarded Rosser all his costs of his successful proceedings. His Honour was, of course, far more familiar than this Court could hope to be with the course of the Equity Division proceedings which occupied in excess of 22 days. Obviously, the fact that Rosser’s appeal succeeded and the Board’s cross-appeal was dismissed is not a factor which could persuade this Court to alter the trial judge’s order awarding Rosser costs. 8   The appeal and cross-appeal occupied between one and two days in this Court and, as stated, Rosser was successful. It is sufficient to say that the Board demonstrated no sufficient reason why the ordinary course should not be followed and costs follow the event. 9   Accordingly, I would dismiss the Board’s supplementary cross-appeal with respect to the costs of the proceedings in the Equity Division and order the Board to pay Rosser’s costs of the appeal and cross-appeal in this Court.