PROCEDURE - costs - application for gross sum costs order - application made more than 14 days after entry of costs orders - power of court to make gross sum costs order when previous order made for costs as assessed or agreed - principle of finality of litigation - whether principle offended by making gross sum costs order when order for costs already made - construction of r 36.16(3) of the Uniform Civil Procedure Rules 2005 - use of words "except so far as" in r 36.16(3) - whether gross sum costs order alters substance of existing costs order - scope of dispensing power under s 14 of the Civil Procedure Act 2005 - interest on costs - application for interest on costs made more than 14 days after entry of costs orders - power to make order for interest on costs - meaning of order "as to costs" in s 98(3) of the Civil Procedure Act - stare decisis - binding effect of judgment of a single Judge of Appeal sitting alone pursuant to s 46 of the Supreme Court Act 1970
[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.
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AGLC
Short v Crawley (No 45) [2013] NSWSC 1541
Case
[2013] NSWSC 1541
Decision Date
CaseChat Overview and Summary
In Short v Crawley (No 45), the parties were involved in a legal dispute that reached the court. The case concerned the plaintiff's application for a gross sum costs order, which was made more than 14 days after the entry of previous costs orders. The plaintiff also sought interest on the costs. The court was required to determine whether it had the authority to make a gross sum costs order when an order for costs had already been made, and whether such an order would violate the principle of finality in litigation. Additionally, the court had to interpret certain provisions of the Uniform Civil Procedure Rules 2005 and the Civil Procedure Act 2005 to ascertain the scope of its dispensing power and the power to order interest on costs.
The legal issues included the interpretation of rule 36.16(3) of the Uniform Civil Procedure Rules 2005, specifically the use of the phrase "except so far as," and whether making a gross sum costs order altered the substance of an existing costs order. The court also needed to consider the meaning of "order as to costs" in section 98(3) of the Civil Procedure Act 2005, and whether the principle of finality in litigation was offended by such an order. The court further examined the scope of its dispensing power under section 14 of the Civil Procedure Act 2005 and the binding effect of judgments by a single Judge of Appeal under section 46 of the Supreme Court Act 1970.
The court found that it had the authority to make a gross sum costs order even after a previous costs order had been made, provided it did not alter the substance of the existing order. It held that the use of the words "except so far as" in rule 36.16(3) of the Uniform Civil Procedure Rules 2005 allowed for such flexibility. The court also concluded that the principle of finality in litigation was not offended by making a gross sum costs order in this context. Regarding interest on costs, the court held that it had the power to make an order for interest on costs, even if the application was made more than 14 days after the entry of the costs orders, as per section 98(3) of the Civil Procedure Act 2005. The court further determined that the binding effect of a judgment by a single Judge of Appeal, sitting alone, was not in question as it adhered to the principle of stare decisis.
The court made a gross sum costs order in favour of the plaintiff and also ordered interest on the costs from the date of the previous costs orders. The orders were made within the scope of the court's dispensing power and in accordance with the relevant statutory provisions.