Marshall v Fleming (No 2) [2015] NSWCA 69

Marshall v Fleming (No 2) [2015] NSWCA 69

The appellants were entitled to their costs of the application for leave to appeal and the appeal since, although leave was refused on certain grounds, the outcome and conduct of the appeal warranted such an order. The costs of the notice of motion in the court below were reserved for determination by the primary judge or other judge of the Common Law Division.

Parties
First Appellant: Margaret Lesley Marshall; Second Appellant: Kim Neil Marshall; First Respondent: Francis G Fleming; Second Respondent: Marc S Moller; Third Respondent: Steven R Pounian; Fourth Respondent: James P Kreindler; Fifth Respondent: David C Cook; Sixth Respondent: David Beekman; Seventh Respondent: Bianca I Rodriguez; Eighth Respondent: Noah H Kushlefsky; Ninth Respondent: Robert J Spragg; Tenth Respondent: Brian J Alexander; Eleventh Respondent: Justin T Green
Jurisdiction
Australia
Judgment Date
26 March 2015
Procedural Posture
Appeal / Costs Determination Following Appeal Decision
Outcome
Respondents ordered to pay appellants' costs of the application for leave to appeal and the appeal. Respondents may have a certificate under the Suitors' Fund Act 1951 (NSW), if eligible. Costs below reserved.
Legal Topics
Costs, Appeals, Foreign Law References
Civil Procedure Costs Appeals Foreign Law References

Case Brief

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Parties

Margaret Lesley Marshall

First Appellant

Kim Neil Marshall

Second Appellant

Francis G Fleming

First Respondent

Marc S Moller

Second Respondent

Steven R Pounian

Third Respondent

James P Kreindler

Fourth Respondent

David C Cook

Fifth Respondent

David Beekman

Sixth Respondent

Bianca I Rodriguez

Seventh Respondent

Noah H Kushlefsky

Eighth Respondent

Robert J Spragg

Ninth Respondent

Brian J Alexander

Tenth Respondent

Justin T Green

Eleventh Respondent

Procedural Posture

Appeal / Costs Determination Following Appeal Decision

Legal Issues

  1. 1 Whether appellants or respondents should be awarded costs of the application for leave to appeal and the appeal
  2. 2 Appropriate orders for costs in circumstances where leave was refused on certain grounds relied on in the court below

Ratio Decidendi

The appellants were entitled to their costs of the application for leave to appeal and the appeal since, although leave was refused on certain grounds, the outcome and conduct of the appeal warranted such an order. The costs of the notice of motion in the court below were reserved for determination by the primary judge or other judge of the Common Law Division.

Court Disposition

Respondents ordered to pay appellants' costs of the application for leave to appeal and the appeal. Respondents may have a certificate under the Suitors' Fund Act 1951 (NSW), if eligible. Costs below reserved.

Orders

  • Respondents pay appellants' costs of the application for leave to appeal and the appeal.
  • Respondents may have a certificate under the Suitors' Fund Act 1951 (NSW), if eligible.