CB Australia Ltd v Shepherd [2018] NSWSC 353

CB Australia Ltd v Shepherd [2018] NSWSC 353

The plaintiff's claim and the defendant's cross-claim were distinct in origin and outcome, so there were two events for costs purposes; however, because the claims were heard together and much evidence and submissions were common to both, separate costs orders for the claim and cross-claim would not fairly reflect the commercial consequences. Taking into account that CB's claim was preponderant but not overwhelmingly so and that CB achieved a net receipt of approximately half of the monies claimed, Mr Shepherd should pay 50 per cent of CB's costs of the proceedings as a whole.

Jurisdiction
Australia
Judgment Date
15 March 2018
Procedural Posture
Equity Commercial List; Costs / Final Orders on Claim and Cross Claim, Including Determination of Disputed Costs Order
Outcome
Final orders in agreed terms on claim and cross-claim; defendant/cross-claimant to pay 50 per cent of plaintiff/cross-defendant's costs.
Legal Topics
['apportionment of Costs' 'ucpr R 42.1' 'costs Follow the Event' 'claim and Cross Claim' 'specific Performance']
['costs' 'civil Procedure' 'equity Commercial List'] ['apportionment of Costs' 'ucpr R 42.1' 'costs Follow the Event' 'claim and Cross Claim' 'specific Performance']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Equity Commercial List; Costs / Final Orders on Claim and Cross Claim, Including Determination of Disputed Costs Order

Legal Issues

  1. 1 ['Whether the costs order should depart from the ordinary rule that costs follow the event under Uniform Civil Procedure Rules 2005 (NSW), r 42.1.' "Whether the proceedings involved a single event or two events for costs purposes where both the plaintiff's claim and the defendant's cross-claim succeeded." 'What costs order would fairly reflect the commercial consequences of the decision on the claim and cross-claim.']

Ratio Decidendi

The plaintiff's claim and the defendant's cross-claim were distinct in origin and outcome, so there were two events for costs purposes; however, because the claims were heard together and much evidence and submissions were common to both, separate costs orders for the claim and cross-claim would not fairly reflect the commercial consequences. Taking into account that CB's claim was preponderant but not overwhelmingly so and that CB achieved a net receipt of approximately half of the monies claimed, Mr Shepherd should pay 50 per cent of CB's costs of the proceedings as a whole.

Court Disposition

Final orders in agreed terms on claim and cross-claim; defendant/cross-claimant to pay 50 per cent of plaintiff/cross-defendant's costs.

Orders

  • ['Order that the defendant pay the plaintiff the sum $856,291.' 'The defendant pay the plaintiff the amount of $75,260.37 on account of interests payable on the amount in order 1 from 16 August 2016 to the date of this order.' 'Order that the plaintiff pay to LS Bell Pty Limited the sum of $440,363.98 and $42,541.63...