Meagher JA at [1]; Barrett JA at [2]; Gleeson JA at [3]
Decision:
2013/107940 (Sunly and Gordon); 2013/107472 (Margaret); 2013/108447 (Helen)
(1)The first and second respondents pay 85% of the respective appellant’s costs of the appeals.
(2)In lieu of orders 9 and 11 of the orders made by Gzell J on 13 March 2013, substitute the following orders:
“9(a)The first and second plaintiffs pay the second, third, fifth and sixth defendants’ costs of the proceedings at first instance, including the proceedings before Smart AJ.
(b)Subject to (c) below, the first defendant (the Estate) pay 35% of the plaintiffs’ costs of the proceedings at first instance, including the proceedings before Smart AJ.
(c)The costs order referred to in (b) above is payable only to the extent that the costs can be satisfied from the late Kut Sze Tu’s 20% share of the net proceeds of sale of the assets of the partnership currently held by the Estate (being the partnership declared by Smart AJ on 25 June 2010).
11The Court notes that the costs ordered to be paid by paragraph 9(a), (b) and (c) above and paragraph 10 of the orders made by Gzell J on 13 March 2013 are payable now (subject to assessment) and shall not be deferred until the completion of the taking of the inquiry provided for in paragraph 3(iv) of the orders made in each appeal by this Court on 23 December 2014.”
Catchwords:
COSTS – costs of appeal – general rule that costs follow the event – whether reason shown to depart from the general rule – where multiple issues and more than one event – whether appellants should be deprived of part of their costs – where appellants not successful on all issues
COSTS – costs of appeal – Bullock order – multiple respondents to appeal – all respondents necessarily joined – whether any basis upon which one respondent could be found responsible for the joinder of the unsuccessful respondents
COSTS – costs of trial – general rule that costs follow the event – whether reason shown to depart from the general rule – where multiple issues and more than one event – where defendants successful on appeal in setting aside relief awarded against them below
COSTS – costs of trial – where plaintiffs ultimately successful in some claims against one defendant – whether plaintiffs should be deprived of part of their costs
COSTS – costs of trial – Bullock order – multiple defendants – whether any basis upon which unsuccessful defendant could be found responsible for the joinder of the other defendants
[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
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Case
[2015] NSWCA 91
Decision Date
CaseChat Overview and Summary
In *Sze Tu v Lowe (No 2)*, the New South Wales Court of Appeal considered appeals and cross-appeals concerning costs orders made at trial. The dispute involved multiple plaintiffs and defendants, with varying degrees of success for each party across different claims and at different stages of the proceedings. The primary focus of the Court of Appeal's decision was the allocation of costs, both for the appeals themselves and for the proceedings at first instance.
The Court of Appeal was required to determine whether to depart from the general rule that costs follow the event, particularly given the multiplicity of issues and parties involved. Specifically, the court had to consider whether the appellants should be deprived of part of their costs of the appeals, and whether any basis existed for a *Bullock* order in relation to the appeals or the trial proceedings, where multiple respondents or defendants were involved. Furthermore, the court had to assess the appropriate costs orders for the trial, considering that the plaintiffs were ultimately successful in some claims against one defendant, while other defendants were successful on appeal in setting aside relief awarded against them at trial.
The Court of Appeal reasoned that while the general rule of costs following the event applied, the complex nature of the litigation, with numerous issues and parties, necessitated a departure from a simple application of that rule. The court found that the appellants on appeal were not successful on all issues, justifying a reduction in their recoverable costs. Similarly, at trial, the plaintiffs' partial success meant they were not entitled to recover all their costs from the defendant against whom they had some success. The court also considered the joinder of various defendants and whether any unsuccessful defendant should bear responsibility for the costs of other, successfully joined defendants, ultimately finding no basis for such an order.
The Court of Appeal ordered that the first and second respondents pay 85% of the respective appellant’s costs of the appeals. For the trial proceedings, the court substituted new orders regarding costs. The first and second plaintiffs were ordered to pay the costs of the second, third, fifth, and sixth defendants. The first defendant (the Estate) was ordered to pay 35% of the plaintiffs’ costs, but this was limited to the extent that such costs could be satisfied from the late Kut Sze Tu’s 20% share of the net proceeds of sale of the partnership assets held by the Estate. The court also clarified that these costs orders were payable immediately, subject to assessment, and not deferred until the completion of an inquiry.
Orders
Orders of the court
2013/107940 (Sunly and Gordon); 2013/107472 (Margaret); 2013/108447 (Helen)
(1)The first and second respondents pay 85% of the respective appellant’s costs of the appeals.
(2)In lieu of orders 9 and 11 of the orders made by Gzell J on 13 March 2013, substitute the following orders:
“9(a)The first and second plaintiffs pay the second, third, fifth and sixth defendants’ costs of the proceedings at first instance, including the proceedings before Smart AJ.
(b)Subject to (c) below, the first defendant (the Estate) pay 35% of the plaintiffs’ costs of the proceedings at first instance, including the proceedings before Smart AJ.
(c)The costs order referred to in (b) above is payable only to the extent that the costs can be satisfied from the late Kut Sze Tu’s 20% share of the net proceeds of sale of the assets of the partnership currently held by the Estate (being the partnership declared by Smart AJ on 25 June 2010).
11The Court notes that the costs ordered to be paid by paragraph 9(a), (b) and (c) above and paragraph 10 of the orders made by Gzell J on 13 March 2013 are payable now (subject to assessment) and shall not be deferred until the completion of the taking of the inquiry provided for in paragraph 3(iv) of the orders made in each appeal by this Court on 23 December 2014.”