Twigg & Anor. v Kung - [2003] NSWCA 42

CITATION: Twigg & Anor. v. Kung & Anor. [2003] NSWCA 42

HEARING DATE(S): In Chambers

JUDGMENT DATE:
7 March 2003

JUDGMENT OF: Stein JA at 1; Hodgson JA at 2; Foster AJA at 25

DECISION: 1. Set aside costs order made on 11 July 2002. 2. Order the appellants to pay Kung's costs of the appellants' appeal, including those ordered to be paid by Registrar Irwin on 24 February 2002, and also McGlynn's costs up to 11 June 2002. 3. Order Kung to pay one half of McGlynn's costs incurred in relation to the appeal after 11 June 2002.

CATCHWORDS: PRACTICE - APPEAL - COSTS - Plaintiff sues two defendants, and first defendant cross-claims against second defendant seeking an indemnity - Plaintiff's claim dismissed, and cross-claim dismissed for that reason - Plaintiff seeks leave to appeal as against first defendant only, and first defendant seeks leave to cross-appeal against dismissal of its cross-claim - Leave to appeal granted and leave to cross-appeal refused - Whether second defendant "affected by the relief sought by a notice of appeal" or "interested in maintaining the decision under appeal" - Who should pay costs arising from joinder of second defendant on application of first defendant.

LEGISLATION CITED: Supreme Court Act 2.75A(10)
Supreme Court Rules Pt.51, rr.9, 22 and 23

CASES CITED: Castellan v. Electric Power Transmission Pty. Ltd. (1967) 69 SR(NSW) 159
Kelly v. Newcastle Protective Coating [1973] 2 NSWLR 45
Shirt v. Wyong Shire Council [1978] 1 NSWLR

PARTIES :
Peter Twigg & Mark Twigg (trading as Adrian Twigg & Co.) - appellant
Patrick Kam Chiu Kung - 1st respondent
Ross Elder McGlynn & Stephen Michael Hahn (trading as McGlynn & Partners) - 2nd respondent

FILE NUMBER(S): CA 40647/00

COUNSEL: The parties consented to the motions being dealt with by the Bench in Chambers without oral submissions.

SOLICITORS: Adrian Twigg & Co. for appellant
Phillip Yip & Associates for respondents

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2762/99

LOWER COURT
JUDICIAL OFFICER : Rolfe DCJ

CA 40647/00
DC 2762/99

STEIN JA
HODGSON JA
FOSTER AJA
Friday 7 March 2003

TWIGG & ANOR. V. KUNG & ANOR.

Judgment (On Costs)

1 STEIN JA: I agree with the reasons on Hodgson JA.

2 HODGSON JA: On 11 July 2002, the Court of Appeal gave judgment on an appeal brought by Adrian Twigg & Co. (the appellants) against rejection of its claim against Patrick Kung (Kung) by Rolfe DCJ. The Court dismissed that appeal with costs. A problem has arisen because, on Kung’s application, an additional respondent had been joined in the appeal, namely Kung’s former solicitors McGlynn & Partners (McGlynn), so that the order made by the Court had the effect that the appellants had to pay the costs of McGlynn as well as those of Kung.

3 The Court has before it a Notice of Motion dated 22 November 2002 by the appellants seeking orders to the effect that they not be liable for McGlynn’s costs; and a Notice of Motion dated 26…

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 Twigg & Anor. v Kung

Details

AGLC: Twigg and Anor. v Kung [2003] NSWCA 42
Case: [2003] NSWCA 42
Decision Date: 7 March 2003

CaseChat Overview and Summary

The appellants, Twigg & Anor., sued the first respondent, Kung, and the second respondent, McGlynn. Twigg & Anor. sought to appeal the dismissal of their claim against Kung. Kung had also cross-claimed against McGlynn for an indemnity, which was dismissed as a consequence of the primary claim's dismissal. Twigg & Anor. sought leave to appeal against Kung only, while Kung sought leave to cross-appeal against McGlynn. The Court of Appeal granted leave to appeal against Kung but refused leave to cross-appeal against McGlynn. The central issue before the Court of Appeal was the allocation of costs arising from McGlynn's joinder in the appeal proceedings at Kung's instance.

The legal issues before the Court of Appeal concerned the interpretation of rules governing appeals and the costs associated with parties who are neither appealing nor being appealed against, but who are joined to the appeal proceedings. Specifically, the court had to determine whether McGlynn was a party "affected by the relief sought by a notice of appeal" or "interested in maintaining the decision under appeal" in a manner that would justify ordering Twigg & Anor. to pay McGlynn's costs of the appeal.

The Court of Appeal reasoned that McGlynn's involvement in the appeal was solely due to Kung's decision to cross-appeal, which was ultimately refused. As McGlynn was not directly affected by Twigg & Anor.'s appeal against Kung, and Kung's cross-appeal against McGlynn failed, it was unjust to require Twigg & Anor. to bear McGlynn's costs of the appeal. The court applied principles of fairness and proportionality in allocating costs, distinguishing between costs incurred before and after McGlynn's involvement became a point of contention.

The Court of Appeal ordered that the costs order made on 11 July 2002 be set aside. It was ordered that the appellants pay Kung's costs of the appeal, including costs previously ordered to be paid by the Registrar, and also McGlynn's costs up to 11 June 2002. Furthermore, Kung was ordered to pay one half of McGlynn's costs incurred in relation to the appeal after 11 June 2002.

Orders

Orders of the court

1. Set aside costs order made on 11 July 2002. 2. Order the appellants to pay Kung's costs of the appellants' appeal, including those ordered to be paid by Registrar Irwin on 24 February 2002, and also McGlynn's costs up to 11 June 2002. 3. Order Kung to pay one half of McGlynn's costs incurred in relation to the appeal after 11 June 2002.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Twigg & Anor. v. Kung & Anor. [2003] NSWCA 42
HEARING DATE(S):	In Chambers
JUDGMENT DATE:	7 March 2003
JUDGMENT OF:	Stein JA at 1; Hodgson JA at 2; Foster AJA at 25
DECISION:	1. Set aside costs order made on 11 July 2002. 2. Order the appellants to pay Kung's costs of the appellants' appeal, including those ordered to be paid by Registrar Irwin on 24 February 2002, and also McGlynn's costs up to 11 June 2002. 3. Order Kung to pay one half of McGlynn's costs incurred in relation to the appeal after 11 June 2002.
CATCHWORDS:	PRACTICE - APPEAL - COSTS - Plaintiff sues two defendants, and first defendant cross-claims against second defendant seeking an indemnity - Plaintiff's claim dismissed, and cross-claim dismissed for that reason - Plaintiff seeks leave to appeal as against first defendant only, and first defendant seeks leave to cross-appeal against dismissal of its cross-claim - Leave to appeal granted and leave to cross-appeal refused - Whether second defendant "affected by the relief sought by a notice of appeal" or "interested in maintaining the decision under appeal" - Who should pay costs arising from joinder of second defendant on application of first defendant.
LEGISLATION CITED:	Supreme Court Act 2.75A(10) Supreme Court Rules Pt.51, rr.9, 22 and 23
CASES CITED:	Castellan v. Electric Power Transmission Pty. Ltd. (1967) 69 SR(NSW) 159 Kelly v. Newcastle Protective Coating [1973] 2 NSWLR 45 Shirt v. Wyong Shire Council [1978] 1 NSWLR
PARTIES :	Peter Twigg & Mark Twigg (trading as Adrian Twigg & Co.) - appellant Patrick Kam Chiu Kung - 1st respondent Ross Elder McGlynn & Stephen Michael Hahn (trading as McGlynn & Partners) - 2nd respondent
FILE NUMBER(S):	CA 40647/00
COUNSEL:	The parties consented to the motions being dealt with by the Bench in Chambers without oral submissions.
SOLICITORS:	Adrian Twigg & Co. for appellant Phillip Yip & Associates for respondents

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2762/99
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ