McIntosh v Morris [2021] NSWCA 225

McIntosh v Morris [2021] NSWCA 225

The primary judge erred in finding that the applicants had acted unreasonably in the proceedings and in awarding costs and indemnity costs to the respondents. The applicants acted reasonably in defending the claim, there was no capitulation, and the correct exercise of the costs discretion was that each party should bear its own costs given the conduct and outcome of the proceedings. No procedural unfairness occurred.

Parties
First Applicant: Jill McIntosh; Second Applicant: Robert Patane; First Respondent: Graeme Morris; Second Respondent: Deborah Morris
Jurisdiction
Australia
Judgment Date
20 September 2021
Procedural Posture
Civil Appeal / Judgment on Leave to Appeal and Appeal From District Court Costs Order
Outcome
Appeal allowed
Legal Topics
Costs, Party/party Costs, Calderbank Offers, Trespass to Land, Continuing Trespass, Mandatory Injunctions, Compromise/settlement, Procedural Fairness
Torts Civil Procedure Costs Party/party Costs Calderbank Offers Trespass to Land Continuing Trespass Mandatory Injunctions +2 more

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Parties

Jill McIntosh

First Applicant

Robert Patane

Second Applicant

Graeme Morris

First Respondent

Deborah Morris

Second Respondent

Procedural Posture

Civil Appeal / Judgment on Leave to Appeal and Appeal From District Court Costs Order

Legal Issues

  1. 1 Whether the District Court erred in making a costs order against the applicants after discontinuance of proceedings
  2. 2 Whether the applicants acted unreasonably in defending the proceedings, justifying an indemnity costs order
  3. 3 Whether procedural fairness was denied to the applicants

Ratio Decidendi

The primary judge erred in finding that the applicants had acted unreasonably in the proceedings and in awarding costs and indemnity costs to the respondents. The applicants acted reasonably in defending the claim, there was no capitulation, and the correct exercise of the costs discretion was that each party should bear its own costs given the conduct and outcome of the proceedings. No procedural unfairness occurred.

Court Disposition

Appeal allowed

Orders

  • Para 2 of the applicants' notice of motion filed on 8 February 2021 is dismissed with costs.
  • Applicants granted leave to appeal.