Wade v Liverpool City Council - [2005] NSWCA 132

CITATION:
Wade v Liverpool City Council & Anor [2005] NSWCA 132

HEARING DATE(S):
On papers

JUDGMENT DATE:

28 April 2005

JUDGMENT OF:
Mason P at 1; Sheller JA at 2; Tobias JA at 3

DECISION:
(1) That Order (b) made by this Court on 9 February 2004 in matter CA 40129/03 be varied by deleting subparagraphs (v), (vi) and (vii) thereof and substituting the following; (v) The first and second defendants pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings; (vi) That as between the first and second defendants; · the first defendant to pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings prior to the joinder of the second defendant; · the first defendant pay 45% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; · the second defendant pay 55% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; (2) The first opponent pay the claimant's costs of the Notice of Motion filed 23 February 2005 on an indemnity basis.

CATCHWORDS:
PROCEDURE - Costs - Plaintiff obtained order that first and second defendants pay plaintiff's costs - Further costs orders made "as between the respective defendants" including orders reflecting apportionment of liability - Appeal by second defendant against apportionment allowed and new orders made reflecting reapportionment - Application by plaintiff to vary new orders to ensure defendants remained joint and severally liable for plaintiff's costs - Whether original orders in fact made defendants so liable - Whether, as a matter of discretion, Court should decline to vary orders - Supreme Court Rules 1970 Part 40 rule 9(3)

LEGISLATION CITED:
Supreme Court Rules 1970

CASES CITED:
Liverpool City Council v Millett; Liverpool City Council v Wade [2004] NSWCA 340

PARTIES:
Nigel Bruce Wade
Liverpool City Council
Richard Gregory Millet

FILE NUMBER(S):
CA 40129/03

COUNSEL:
CL: Mr R Dalgleish
1 OPP: Mr D Villa
2 OPP: N/A

SOLICITORS:
Cl: G J Byles & Associates, Sydney
1 OPP: McCabe Terrill Lawyers, Sydney
2 OPP: N/A

LOWER COURT JURISDICTION:

CA 40129/03
DC 6655/02

MASON P
SHELLER JA
TOBIAS JA
Thursday 28 April 2005

NIGEL BRUCE WADE v LIVERPOOL CITY COUNCIL & ANOR [2]

Judgment

1 MASON P: I agree with Tobias JA.

2 SHELLER JA: I agree with Tobias JA.

3 TOBIAS JA: This matter involved an appeal by Liverpool City Council (the Council) against orders made by Norrish DCJ on 7 February 2003 in favour of Nigel Bruce Wade (Mr Wade) in proceedings DC 6655/02 (CA 40129/03) and Richard Gregory Millett (Mr Millett) in proceedings DC 766/01 (CA 40130/03). For present purposes the Court is only concerned with DC 6655/02 (CA 40129/03) (the Wade proceedings).

4 Mr Wade sued Mr Millett for damages as a consequence of a collision between vehicles driven by each of them. He later joined the Council as a defendant alleging negligence against it. At the…

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: [2005] NSWCA 132
Decision Date: 28 April 2005

CaseChat Overview and Summary

The plaintiff, Wade, sought to vary costs orders made by the Court of Appeal in proceedings against the first and second defendants, Liverpool City Council. The dispute concerned the apportionment of the plaintiff's costs as between the two defendants, following an earlier appeal that had varied initial apportionment orders. The Court of Appeal was asked to determine whether the original orders had rendered the defendants jointly and severally liable for the plaintiff's costs, and whether, in the exercise of discretion, the court should decline to vary those orders.

The Court was required to consider the effect of the original costs orders made on 9 February 2004, specifically whether they established joint and several liability for the plaintiff's costs between the first and second defendants. It also had to determine whether to exercise its discretion to vary those orders in light of the subsequent application by the plaintiff. The Supreme Court Rules 1970, specifically Part 40 rule 9(3), were relevant to the court's power to vary its own orders.

The Court reasoned that the original orders, as made, did not clearly establish joint and several liability for the plaintiff's costs between the defendants. Instead, they had made orders as between the respective defendants, reflecting an apportionment of liability. The Court exercised its discretion to vary the previous orders to clarify the position. The variation aimed to ensure that both defendants remained liable to the plaintiff for the plaintiff's costs, while also clearly delineating the apportionment of those costs as between the first and second defendants.

The Court ordered that the original costs order be varied. The first and second defendants were to pay the plaintiff's costs of the Local Court and District Court proceedings. Furthermore, as between themselves, the first defendant was to bear the plaintiff's costs of the Local Court proceedings and the District Court proceedings prior to the joinder of the second defendant. For the District Court proceedings subsequent to the joinder of the second defendant, the first defendant was to pay 45% of the plaintiff's costs, and the second defendant was to pay 55%. The first opponent was also ordered to pay the claimant's costs of the Notice of Motion on an indemnity basis.

Orders

Orders of the court

(1) That Order (b) made by this Court on 9 February 2004 in matter CA 40129/03 be varied by deleting subparagraphs (v), (vi) and (vii) thereof and substituting the following; (v) The first and second defendants pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings; (vi) That as between the first and second defendants; · the first defendant to pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings prior to the joinder of the second defendant; · the first defendant pay 45% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; · the second defendant pay 55% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; (2) The first opponent pay the claimant's costs of the Notice of Motion filed 23 February 2005 on an indemnity basis.

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.

CITATION:	Wade v Liverpool City Council & Anor [2005] NSWCA 132
HEARING DATE(S):	On papers
JUDGMENT DATE:	28 April 2005
JUDGMENT OF:	Mason P at 1; Sheller JA at 2; Tobias JA at 3
DECISION:	(1) That Order (b) made by this Court on 9 February 2004 in matter CA 40129/03 be varied by deleting subparagraphs (v), (vi) and (vii) thereof and substituting the following; (v) The first and second defendants pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings; (vi) That as between the first and second defendants; · the first defendant to pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings prior to the joinder of the second defendant; · the first defendant pay 45% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; · the second defendant pay 55% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; (2) The first opponent pay the claimant's costs of the Notice of Motion filed 23 February 2005 on an indemnity basis.

CATCHWORDS:	PROCEDURE - Costs - Plaintiff obtained order that first and second defendants pay plaintiff's costs - Further costs orders made "as between the respective defendants" including orders reflecting apportionment of liability - Appeal by second defendant against apportionment allowed and new orders made reflecting reapportionment - Application by plaintiff to vary new orders to ensure defendants remained joint and severally liable for plaintiff's costs - Whether original orders in fact made defendants so liable - Whether, as a matter of discretion, Court should decline to vary orders - Supreme Court Rules 1970 Part 40 rule 9(3)
LEGISLATION CITED:	Supreme Court Rules 1970
CASES CITED:	Liverpool City Council v Millett; Liverpool City Council v Wade [2004] NSWCA 340
PARTIES:	Nigel Bruce Wade Liverpool City Council Richard Gregory Millet
FILE NUMBER(S):	CA 40129/03
COUNSEL:	CL: Mr R Dalgleish 1 OPP: Mr D Villa 2 OPP: N/A
SOLICITORS:	Cl: G J Byles & Associates, Sydney 1 OPP: McCabe Terrill Lawyers, Sydney 2 OPP: N/A