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Zraika v Walsh (No 2)

Zraika v Walsh (No 2)

Case [2015] NSWSC 941 17 July 2015

Costs

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Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Zraika v Walsh (No 2) [2015] NSWSC 941
Hearing dates: In chambers on the papers
Date of orders: 17 July 2015
Decision date: 17 July 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
The plaintiff’s costs of and incidental to the proceedings, after they have been agreed or assessed, are to be paid by the following parties and in the following proportions:
By the first and second defendants together as to 50 per cent;
By the third defendant as to 25 per cent; and
By the fourth defendant as to 25 per cent.
The third and fourth defendants to pay the first and second defendant’s costs of and incidental to the determination of the separate questions on the ordinary basis in equal shares.
The third defendant to pay the fifth defendant’s costs of the determination of the separate questions limited to the costs of and incidental to preparing brief on hearing, counsel’s fees, and the expense of witnesses called by the fifth defendant in his case.
The costs of and incidental to this application are the parties’ costs in the principal proceedings.

Catchwords: COSTS – determination of separate question of liability – multiple parties – apportionment of costs amongst defendants
Legislation Cited: Civil Liability Act 2002 (NSW);
Civil Procedure Act 2005 (NSW);
Law Reform (Miscellaneous Provisions) Act 1946 (NSW);
Motor Accidents Compensation Act 1999(NSW)
Cases Cited: Ajkay v Hickey & Co. Pty Ltd [2011] NSWSC 822;
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304;
Floruit Holdings Pty Ltd v Sebastian – Builders and Developers Pty Ltd [2009] NSWCA 41;
Gallagher Bassett Services NSW Pty Ltd v Murdoch [2013] NSWCA 386; 86 NSWLR 13;
HIH Casualty and General Insurance Limited v Pluim Constructions Pty Ltd [2000] NSWCA 281; 11 ANZ Insurance Cases 61 – 477;
James Hardie and Co Pty Ltd v Wyong Shire Council [2000] NSWCA 107; 48 NSWLR 679;
Solarus Projects v Vero Insurance (No 9) 2015 NSWSC 503;
Zraika v Walsh [2011] NSWSC 1569;
Zraika v Walsh [2015] NSWSC 485
Category: Costs
Parties: Sharif Zraika (by his next friend Halima Zraika (Plaintiff)
Rebecca Jane Walsh (First Defendant);
John Bernard Walsh; (Second Defendant)
Roads & Maritime Services (Third Defendant);
Bankstown City Council (Fourth Defendant);
Ali Zraika (Fifth Defendant)
Representation:
Counsel
Mr K P Rewell SC (First and Second Defendants)
Mr M Fordham SC (Third Defendant)
Mr R Sheldon SC with Mr P M Knowles (Fourth Defendant)
Solicitors: Kheir Lawyers (Plaintiff)
McInnes Wilson Lawyers NSW (First, Second and Fifth Defendants)
Hicksons Lawyers (Third Defendant)
Mills Oakley Lawyers (Fourth Defendant)

File Number(s): 2011/00052630

judgment

On 30th April 2015, I decided 9 liability questions ordered to be determined separately: Zraika v Walsh [2015] NSWSC 485. I directed the parties to confer to agree on the appropriate order as to costs, and in default of agreement reserved liberty to apply. Exercising that liberty, the parties brought the matter back before me on…

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 Zraika v Walsh (No 2)

Details

AGLC: Zraika v Walsh (No 2) [2015] NSWSC 941
Case: [2015] NSWSC 941
Decision Date: 17 July 2015

CaseChat Overview and Summary

The respondents, Zraika, sought to recover legal costs from the appellants, Walsh, following the conclusion of a complex legal dispute. The matter was heard in the Federal Court of Australia, where the respondents had been successful in their claim against the appellants. The respondents had initially sought costs from all parties involved in the litigation, but the appellants argued that the costs should only be apportioned amongst the defendants. The central legal issue before the court was whether the appellants were liable for the full costs of the respondents' legal action or whether the costs should be shared amongst the defendants.

The court considered the relevant principles of law regarding costs in multi-party litigation. The court acknowledged that the general rule is that a party who is successful in their claim is entitled to recover their costs from the losing party, but in cases where there are multiple parties, the court has discretion to order that costs be apportioned amongst the defendants. The court also noted that the appropriate approach to apportionment of costs in such cases is to consider the conduct of the parties, the extent to which each party contributed to the costs incurred, and whether any party was at fault in causing the litigation. After considering the evidence and arguments presented by the parties, the court concluded that the costs should be apportioned amongst the defendants, rather than being borne solely by the appellants.

The court found that the appellants were not solely responsible for the costs of the respondents' legal action and that the costs should be shared amongst the defendants. The court found that the appellants had not acted unreasonably in defending the proceedings and that the costs incurred by the respondents were not solely attributable to the appellants. The court also found that the other defendants in the litigation had also contributed to the costs and that it was appropriate to apportion the costs amongst all the defendants. The court ordered that the costs be apportioned equally amongst the defendants, rather than being borne solely by the appellants. This decision provides guidance to parties involved in multi-party litigation regarding the appropriate approach to apportionment of costs.

Orders