The Nominal Defendant v Ross (No 2)

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Nominal Defendant v Ross (No 2) [2014] NSWCA 370

Hearing dates:

On the papers

Decision date:

31 October 2014

Before:

Beazley P at [1]
Meagher JA at [1]
Hoeben JA at [1]

Decision:

Make the following orders in addition to those made in The Nominal Defendant v Ross [2014] NSWCA 212.

(3) The respondent is to pay 30 percent of the appellant's costs of the appeal.

(4) That the respondent have a certificate under s 6 of the Suitors' Fund Act 1951 if otherwise qualified.

[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 - costs of appeal - general rule that costs follow the event - departing from the general rule - where there has been a mixed outcome in the proceedings - global view of the outcome of proceedings appropriate.

Legislation Cited:

Civil Procedure Act 2005 - s98
Suitors Fund Act 1951 - s6(2)
Uniform Civil Procedure Rules 2005 - r42.1

Cases Cited:

Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007]NSWCA 373
James & Ors v Surf Road Nominees Pty Limited & Ors (No 2) [2005] NSWCA 296
Seller v Jones [2014] NSWCA 19
The Council of the NSW Bar Association v Nash [2013] NSWCA 466
The Nominal Defendant v Ross [2014] NSWCA 212

Category:

Costs

Parties:

The Nominal Defendant - Appellant
Ysaiah Ross - Respondent

Representation:

Counsel:
Mr K Rewell SC/Mr W Fitzsimmons - Appellant
Mr R Sheldon SC/Ms E Welsh - Respondent
Solicitors:
McCourts Solicitors - Appellant
Brydens Law Office LP - Respondent

File Number(s):

2013/248126

 Decision under appeal 

Citation:

[2013] NSWDC 110

Date of Decision:

2013-07-19 00:00:00

Before:

Levy SC DCJ

File Number(s):

2011/157874

Judgment

1. THE COURT: The Court delivered judgment in this appeal on 3 July 2014: The Nominal Defendant v Ross [2014] NSWCA 212 (the principal judgment). The judgment of the primary judge in favour of the respondent in the amount of $328,540 was set aside and judgment was given in favour of the respondent for $266,939. The orders of the primary judge that the appellant pay the respondent's costs of the trial were left unaffected.

1. Three issues were raised by the appellant in the appeal:

(1)   The finding of negligence against it.

(2)   The extent of contributory negligence found against the respondent.

(3)   Whether the respondent complied with his obligation of due inquiry and search.

The appeal in respect of issues (1) and (3) was dismissed but upheld in relation to (2). The finding of contributory negligence against the respondent was increased from 20 percent to 35 percent.

1. This judgment deals with the costs…