Brierly v Biggs & Sons Development P/L & 1 Or [2002] NSWCA 362

Brierly v Biggs & Sons Development P/L & 1 Or [2002] NSWCA 362

Because each cross-claim was withdrawn or sought to be withdrawn and then dismissed, there was a clear event in favour of the cross-defendant to each cross-claim. No sufficient basis appeared for departing from the usual rule that costs follow the event, so the District Court's order making no order for costs caused a major injustice and should be set aside.

Jurisdiction
Australia
Judgment Date
31 October 2002
Procedural Posture
Appeal on Costs / Appeal From District Court Order Making No Order for Costs After Dismissal of Cross Claims
Outcome
Appeal allowed; District Court no order for costs set aside.
Legal Topics
['costs' 'cross Claims' 'discretionary Costs Orders' 'costs Follow the Event']
['civil Procedure'] ['costs' 'cross Claims' 'discretionary Costs Orders' 'costs Follow the Event']

Case Brief

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Procedural Posture

Appeal on Costs / Appeal From District Court Order Making No Order for Costs After Dismissal of Cross Claims

Legal Issues

  1. 1 ['Whether the District Court judge erred in making no order for costs after the first and second cross-claims were withdrawn and dismissed.' 'Whether Biggs & Sons Development Pty Limited was entitled to its costs of the first cross-claim.' 'Whether Peter Brierly was entitled to his costs of the second cross-claim.']

Ratio Decidendi

Because each cross-claim was withdrawn or sought to be withdrawn and then dismissed, there was a clear event in favour of the cross-defendant to each cross-claim. No sufficient basis appeared for departing from the usual rule that costs follow the event, so the District Court's order making no order for costs caused a major injustice and should be set aside.

Court Disposition

Appeal allowed; District Court no order for costs set aside.

Orders

  • ['Appeal allowed.' 'The order below of no order for costs was set aside.' 'Biggs & Sons Development Pty Limited is to pay the costs of Peter Brierly.' 'Summercraft Blinds, Awnings & Security Pty Limited is to pay the costs of Biggs & Sons Development Pty Limited, including the costs which Biggs & Sons Development...