Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374

Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374

The notice of motion was refused because the Council was substantially successful on the appeal and, absent exceptional circumstances, the ordinary rule entitled a successful appellant to its appeal costs. No separate unsuccessful issue increased the appeal hearing, no Calderbank offer justified a different order, and the plaintiff had the benefit of a Suitor's Fund certificate.

Jurisdiction
Australia
Judgment Date
20 December 2006
Procedural Posture
Costs Application in Court of Appeal / Notice of Motion Determined on the Papers to Set Aside or Vary an Unentered Costs Order After Appeal Judgment
Outcome
Order (j) made by the Court on 18 October 2006 is to remain undisturbed and the plaintiff's notice of motion filed on 25 October 2006 is dismissed with costs.
Legal Topics
['consequential Costs Orders' 'reopening or Varying Judgment Before Entry' 'costs of Appeal' 'exercise of Discretion' "suitor's Fund Certificate"]
['civil Procedure' 'costs' 'appellate Procedure'] ['consequential Costs Orders' 'reopening or Varying Judgment Before Entry' 'costs of Appeal' 'exercise of Discretion' "suitor's Fund Certificate"]

Case Brief

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Procedural Posture

Costs Application in Court of Appeal / Notice of Motion Determined on the Papers to Set Aside or Vary an Unentered Costs Order After Appeal Judgment

Legal Issues

  1. 1 ["Whether the Court should set aside or vary its order that the plaintiff, Ronali and Edremo pay the Council's costs of the summons for leave to appeal and the appeal." 'Whether the absence of submissions about appeal costs justified reopening the costs order under Pt 36 r36.16(1) of the Uniform Civil Procedure Rules 2005.' 'Whether the Council was substantially successful on the appeal so that costs should follow the event.']

Ratio Decidendi

The notice of motion was refused because the Council was substantially successful on the appeal and, absent exceptional circumstances, the ordinary rule entitled a successful appellant to its appeal costs. No separate unsuccessful issue increased the appeal hearing, no Calderbank offer justified a different order, and the plaintiff had the benefit of a Suitor's Fund certificate.

Court Disposition

Order (j) made by the Court on 18 October 2006 is to remain undisturbed and the plaintiff's notice of motion filed on 25 October 2006 is dismissed with costs.

Orders

  • ['Order (j) made by the Court on 18 October 2006 should remain undisturbed.' "The plaintiff's notice of motion filed on 25 October 2006 should be dismissed with costs."]