Hillam v Iacullo [2016] NSWCA 1

Hillam v Iacullo [2016] NSWCA 1

The Court refused to vary its earlier costs order because McDougall J's orders concerning principal and interest were not affected by the Court of Appeal's dismissal of the proceedings concerning the uplift; the only issues determined finally by the primary judge were issues on which the Iacullos should have failed; the unsuccessful uplift claim significantly exceeded the claims on which they had earlier succeeded; and the Iacullos already had favourable costs orders for their successful judgment application. There was no occasion to make a complex issue-based costs order.

Jurisdiction
Australia
Judgment Date
03 February 2016
Procedural Posture
Costs; Notice of Motion to Vary Orders Made by the Court of Appeal in Lieu of Orders Made at First Instance / On the Papers After Appeal Allowed
Outcome
Notice of motion filed 24 July 2015 dismissed with costs.
Legal Topics
['application to Vary Costs Order' 'ucpr 36.16' 'slip Rule' 'issue Based Costs Orders' 'costs Following the Event']
['civil Procedure' 'costs' 'appellate Procedure'] ['application to Vary Costs Order' 'ucpr 36.16' 'slip Rule' 'issue Based Costs Orders' 'costs Following the Event']

Case Brief

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Procedural Posture

Costs; Notice of Motion to Vary Orders Made by the Court of Appeal in Lieu of Orders Made at First Instance / On the Papers After Appeal Allowed

Legal Issues

  1. 1 ['Whether the Court of Appeal should vary its orders so as to preserve the favourable costs order made for Mr and Mrs Iacullo at first instance.' 'Whether the order dismissing the proceedings should be clarified to dismiss only the balance of the proceedings.' "Whether costs at first instance should be ordered by reference to the Iacullos' earlier success on principal and interest, despite their failure on the uplift claim tried before the primary judge."]

Ratio Decidendi

The Court refused to vary its earlier costs order because McDougall J's orders concerning principal and interest were not affected by the Court of Appeal's dismissal of the proceedings concerning the uplift; the only issues determined finally by the primary judge were issues on which the Iacullos should have failed; the unsuccessful uplift claim significantly exceeded the claims on which they had earlier succeeded; and the Iacullos already had favourable costs orders for their successful judgment application. There was no occasion to make a complex issue-based costs order.

Court Disposition

Notice of motion filed 24 July 2015 dismissed with costs.

Orders

  • ['The notice of motion filed 24 July 2015 be dismissed with costs.' "Mr Hillam's costs of that notice of motion should be paid by Mr and Mrs Iacullo."]