FJ & SM Monaghan Pty Ltd v S & W Slade Pty Ltd & Ors (No 2) [2017] NSWDC 182

FJ & SM Monaghan Pty Ltd v S & W Slade Pty Ltd & Ors (No 2) [2017] NSWDC 182

The proper exercise of discretion on costs requires that, despite partial success of the Second and Third Defendants on a severable issue, the Plaintiff should pay a proportion (20%) of their costs, while the First Defendant pays the Plaintiff’s costs on the main claim, and Cross-Claimants pay the Cross-Defendants’ costs. Separation of issues for costs in this manner does not offend the fair, broad brush approach to costs under the rules.

Parties
Plaintiff/cross Defendant: FJ & SM Monaghan Pty Ltd; First Defendant/cross Claimant: S & W Slade Pty Ltd; Second Defendant/second Cross Claimant: Mr Stephen Garry Slade; Third Defendant/third Cross Claimant: Mrs Wendy Maree Slade
Jurisdiction
Australia
Judgment Date
11 July 2017
Procedural Posture
Civil / Costs Judgment (post Substantive Decision)
Outcome
Costs apportioned: First Defendant to pay Plaintiff’s costs; Plaintiff to pay 20% of Second and Third Defendants’ costs; Cross-Claimants to pay Cross-Defendants’ costs; each to bear own costs on the costs argument.
Legal Topics
Costs, Costs Follow the Event, Apportionment of Costs, Separation of Issues in Costs
Civil Procedure Costs Costs Follow the Event Apportionment of Costs Separation of Issues in Costs

Case Brief

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Parties

FJ & SM Monaghan Pty Ltd

Plaintiff/cross Defendant

S & W Slade Pty Ltd

First Defendant/cross Claimant

Mr Stephen Garry Slade

Second Defendant/second Cross Claimant

Mrs Wendy Maree Slade

Third Defendant/third Cross Claimant

Procedural Posture

Civil / Costs Judgment (post Substantive Decision)

Legal Issues

  1. 1 How should costs be apportioned where the Plaintiff succeeds against the First Defendant but not against the Second and Third Defendants?
  2. 2 Should Second and Third Defendants receive all, some, or none of their costs given partial success on distinct issue?
  3. 3 Should the cross-claim affect the costs orders?

Ratio Decidendi

The proper exercise of discretion on costs requires that, despite partial success of the Second and Third Defendants on a severable issue, the Plaintiff should pay a proportion (20%) of their costs, while the First Defendant pays the Plaintiff’s costs on the main claim, and Cross-Claimants pay the Cross-Defendants’ costs. Separation of issues for costs in this manner does not offend the fair, broad brush approach to costs under the rules.

Court Disposition

Costs apportioned: First Defendant to pay Plaintiff’s costs; Plaintiff to pay 20% of Second and Third Defendants’ costs; Cross-Claimants to pay Cross-Defendants’ costs; each to bear own costs on the costs argument.

Orders

  • The First Defendant pay the Plaintiff's costs of the proceedings on the Plaintiff's claim.
  • The Plaintiff pay 20% of the Second and Third Defendants' costs on the Plaintiff's claim.