PROCEDURE – costs – multiple issues – plaintiffs substantially the successful party – defendants attained a measure of success also – many issues not severable or distinct – costs award should reflect the parties’ degree of success – impossible precisely to assess proportions – defendants to pay two-thirds of the plaintiffs’ costs - PROCEDURE – costs – indemnity costs – late concession – no significant costs savings – findings of misconduct by primary defendant – misconduct only relevant to costs insofar as it relates to the manner in which the litigation was conducted rather than insofar as it caused the litigation – defendants achieved a measure of success – indemnity costs inappropriate - PROCEDURE – costs – late joinder of some defendants – those defendants were separately represented – separate costs orders made in relation to those defendants - PROCEDURE – costs – costs of preparation of expert report for plaintiffs – report not tendered – other experts used information in the report – defendants put to expense in preparing evidence in response to report – no order as to costs
Roslyn Short as executrix of the estate of the Late Warwick Gordon Short & Anor v Christopher Crawley & 9 Ors (No. 40)
FILE NUMBER(S):
SC 2824/98
COUNSEL:
Plaintiffs: I M Jackman SC & T M Thawley Defendants: D Studdy SC
SOLICITORS:
Plaintiffs: Kemp Strang Defendants: Bruce Stewart Dimarco Lawyers
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
WHITE J
Friday, 12 December 2008
2824/98 Roslyn Short as executrix of the estate of the Late Warwick Gordon Short & Anor v Christopher Crawley & 9 Ors (No. 40)
JUDGMENT
1 HIS HONOUR: This judgment deals with questions of costs. It is to be understood in the context of the earlier judgments, in…
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 Short v Crawley (No 40)
Sign in free to access the full text
Details
AGLC
Short v Crawley (No 40) [2008] NSWSC 1302
Case
[2008] NSWSC 1302
Decision Date
CaseChat Overview and Summary
In the Federal Court, the plaintiffs, Short, commenced proceedings against the defendants, Crawley, and others, seeking damages for defamation, breach of confidence, and misuse of private information. The proceedings were complex and involved multiple issues, including the admissibility of certain evidence and the application of various legal principles. The court was required to determine the appropriate allocation of costs between the parties, considering the substantial success of the plaintiffs and the partial success achieved by the defendants.
The primary legal issue was the allocation of costs given the complex nature of the litigation, where the plaintiffs were substantially successful but the defendants had also attained some measure of success. The court held that because many of the issues were not severable or distinct, it was impossible to precisely assess the proportions of success achieved by each party. Consequently, the court ordered that the defendants pay two-thirds of the plaintiffs' costs, reflecting the overall degree of success achieved by the plaintiffs. The court also considered the findings of misconduct by the primary defendant, noting that while such misconduct was relevant to the costs insofar as it related to the manner in which the litigation was conducted, it did not warrant an order for indemnity costs. The court rejected the plaintiffs' application for indemnity costs, finding that the defendants had achieved a measure of success and that there were no significant cost savings resulting from the late concession by the defendants.
The court further addressed the costs associated with the late joinder of some defendants, who were separately represented. Separate costs orders were made in relation to those defendants. Additionally, the court declined to make an order regarding the costs of preparing an expert report for the plaintiffs, as the report was not tendered and other experts used the information contained within it. The defendants had incurred expense in preparing evidence in response to the report, but the court found no basis to make an order as to those costs.