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Taylor v Owners - Strata Plan No 11564 (No 2)

Taylor v Owners - Strata Plan No 11564 (No 2)

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taylor v Owners - Strata Plan No 11564 (No 2) [2013] NSWCA 153
Hearing dates: On the papers
Decision date: 05 June 2013
Before: McColl JA;
Basten JA;
Hoeben JA
Decision:
(1) Vary order 4 made on 18 March 2013 so that it reads:
Appellant to pay one set of costs to the first four and sixth respondents in respect of the application for leave to appeal and the appeal.
(2) Costs payable pursuant to order (1) above to the first four and sixth respondents shall not include the cost of the undated document entitled "First to Fourth and Sixth Respondents' Response to Applicant's Supplementary Submissions" which were not relied upon at the hearing.
(3) Order the first four and sixth respondents to pay the appellant's costs of this motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: COSTS - varying order - whether applicant should pay only one set of costs - where multiple respondents represented separately - where respondents' interests at odds in main proceedings - where costs order related to appeal on discrete question - where respondents' interests identical on discrete question - where applicant gave advance notice of objection to more than one set of costs - where objection not raised before trial judge - Uniform Civil Procedure Rules, r 51.4
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.4
Cases Cited: Credit Lyonnais Australia Ltd v Darling (1991) 5 ACSR 703
Milillo v Konnecke [2009] NSWCA 109; 2 ASTLR 235
Statham v Shephard (No 2) (1974) 23 FLR 244
Taylor v Owners - Strata Plan No 11564 [2013] NSWCA 55
Category: Procedural and other rulings
Parties:
Susan Joy Taylor in her own capacity and for and on behalf of the dependants of the late Craig Taylor (Applicant)
The Owners - Strata Plan No 11564 (First Respondent)
Alison Margaret Lamond (Second Respondent)
Gordon Sunn (Third Respondent)
Clifford Sunn (Fourth Respondent)
Duncan Rae (Fifth Respondent)
Manly Council (Sixth Respondent)
Ryan Winton Taylor (Seventh Respondent)
Lisa Jane Taylor (Eighth Respondent)
Mitchell Alan Taylor (Ninth Respondent)
Zara Zoe Taylor (Tenth Respondent)
Representation:
Counsel:

Ms V M Heath (Applicants)
Mr G M Gregg/Ms J E Maconachie (First to Fourth Respondents)
Solicitors:
Craddock Murray Neumann (Applicants)
Meridian Lawyers (First to Fourth Respondents)
Addisons Commercial Lawyers (Fifth Respondent)
S L Kelly, DLA Piper Australia (Sixth Respondent
Milne Berry Berger & Freeman (Eighth and Ninth Respondents)
Craddock Murray Neumann (Tenth Respondent)

File Number(s): CA 2012/264824
Decision under appeal

Jurisdiction:

9111

Citation:

Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842

Date of Decision:

2012-07-27 00:00:00

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.

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Details

Case: [2013] NSWCA 153
Decision Date: 05 June 2013

CaseChat Overview and Summary

In *Taylor v Owners - Strata Plan No 11564 (No 2)*, the applicant sought to vary a costs order made by the Court of Appeal. The dispute concerned whether the applicant should be ordered to pay only one set of costs to multiple respondents, despite those respondents being represented separately in the main proceedings. The appeal itself had been determined on a discrete question, and on that question, the respondents' interests were identical. The applicant had also given advance notice of their objection to paying more than one set of costs.

The primary legal issue before the Court of Appeal was whether to vary the existing costs order to reflect the specific circumstances of the appeal, particularly the alignment of the respondents' interests on the discrete question and the applicant's prior notification of objection to multiple sets of costs. The court also had to consider the application of rule 51.4 of the Uniform Civil Procedure Rules in determining the appropriate costs order.

The Court of Appeal reasoned that while separate representation in the main proceedings might ordinarily warrant separate costs orders, the circumstances of this appeal, where the respondents' interests were identical on the specific issue before the court, justified a departure from that general rule. The court noted the applicant's advance notice of objection and the fact that the respondents' interests were not truly at odds on the discrete question that formed the basis of the appeal. Consequently, the court varied the original costs order to require the appellant to pay only one set of costs to the first four and sixth respondents. The court further ordered that these costs should not include the expense of a particular document that was not relied upon at the hearing. Finally, the court ordered the first four and sixth respondents to pay the appellant's costs of the motion to vary the order.

Orders

Orders of the court

(1) Vary order 4 made on 18 March 2013 so that it reads:

Appellant to pay one set of costs to the first four and sixth respondents in respect of the application for leave to appeal and the appeal.

(2) Costs payable pursuant to order (1) above to the first four and sixth respondents shall not include the cost of the undated document entitled "First to Fourth and Sixth Respondents' Response to Applicant's Supplementary Submissions" which were not relied upon at the hearing.

(3) Order the first four and sixth respondents to pay the appellant's costs of this motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Taylor v Owners - Strata Plan No 11564 (No 2) [2013] NSWCA 153
Hearing dates:	On the papers
Decision date:	05 June 2013
Before:	McColl JA; Basten JA; Hoeben JA
Decision:	(1) Vary order 4 made on 18 March 2013 so that it reads: Appellant to pay one set of costs to the first four and sixth respondents in respect of the application for leave to appeal and the appeal. (2) Costs payable pursuant to order (1) above to the first four and sixth respondents shall not include the cost of the undated document entitled "First to Fourth and Sixth Respondents' Response to Applicant's Supplementary Submissions" which were not relied upon at the hearing. (3) Order the first four and sixth respondents to pay the appellant's costs of this motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - varying order - whether applicant should pay only one set of costs - where multiple respondents represented separately - where respondents' interests at odds in main proceedings - where costs order related to appeal on discrete question - where respondents' interests identical on discrete question - where applicant gave advance notice of objection to more than one set of costs - where objection not raised before trial judge - Uniform Civil Procedure Rules, r 51.4
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.4
Cases Cited:	Credit Lyonnais Australia Ltd v Darling (1991) 5 ACSR 703 Milillo v Konnecke [2009] NSWCA 109; 2 ASTLR 235 Statham v Shephard (No 2) (1974) 23 FLR 244 Taylor v Owners - Strata Plan No 11564 [2013] NSWCA 55
Category:	Procedural and other rulings
Parties:	Susan Joy Taylor in her own capacity and for and on behalf of the dependants of the late Craig Taylor (Applicant) The Owners - Strata Plan No 11564 (First Respondent) Alison Margaret Lamond (Second Respondent) Gordon Sunn (Third Respondent) Clifford Sunn (Fourth Respondent) Duncan Rae (Fifth Respondent) Manly Council (Sixth Respondent) Ryan Winton Taylor (Seventh Respondent) Lisa Jane Taylor (Eighth Respondent) Mitchell Alan Taylor (Ninth Respondent) Zara Zoe Taylor (Tenth Respondent)
Representation:	Counsel: Ms V M Heath (Applicants) Mr G M Gregg/Ms J E Maconachie (First to Fourth Respondents) Solicitors: Craddock Murray Neumann (Applicants) Meridian Lawyers (First to Fourth Respondents) Addisons Commercial Lawyers (Fifth Respondent) S L Kelly, DLA Piper Australia (Sixth Respondent Milne Berry Berger & Freeman (Eighth and Ninth Respondents) Craddock Murray Neumann (Tenth Respondent)
File Number(s):	CA 2012/264824
Decision under appeal	Jurisdiction: 9111 Citation: Taylor v The Owners - Strata Plan No 11564 [2012] NSWSC 842 Date of Decision: 2012-07-27 00:00:00