NATIONAL ACCEPTANCE CORPORATION PTY LTD v HARTNIG [1997] NSWCA 218

NATIONAL ACCEPTANCE CORPORATION PTY LTD v HARTNIG [1997] NSWCA 218

The trial judge's exercise of discretion in refusing to award costs to the successful plaintiff was affected by irrelevant or incorrect considerations and thus must be set aside. However, because the proceedings were protracted over a small sum, involved amendment of claim, discontinuance against one defendant, and mutual responsibility for an adjournment, the appropriate exercise of discretion is to order the third defendant to pay half the plaintiff's costs in the District Court.

Parties
Appellant/plaintiff: National Acceptance Corporation Pty Ltd; Respondent/third Defendant: Mrs Hartnig; Second Defendant (deceased): Mr Hartnig; First Defendant (in Liquidation): [unnamed company] (first defendant)
Jurisdiction
Australia
Judgment Date
18 April 1997
Procedural Posture
Appeal / Judgment by Court of Appeal
Outcome
Appeal allowed; costs order below set aside; judgment for plaintiff in amended sum with costs orders as specified.
Legal Topics
Costs, Appeal, Discretion as to Costs, Settlement Offers, Jurisdiction Transfer
Civil Procedure Costs Appeal Discretion as to Costs Settlement Offers Jurisdiction Transfer

Case Brief

Summary, issues, holding and outcome

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Parties

National Acceptance Corporation Pty Ltd

Appellant/plaintiff

Mrs Hartnig

Respondent/third Defendant

Mr Hartnig

Second Defendant (deceased)

[unnamed company] (first defendant)

First Defendant (in Liquidation)

Procedural Posture

Appeal / Judgment by Court of Appeal

Legal Issues

  1. 1 Whether the trial judge erred in making no order as to costs despite the plaintiff's success
  2. 2 Whether irrelevant factors were taken into account in exercising the discretion on costs
  3. 3 Appropriate order for costs in light of proceedings, jurisdiction, settlement offers and claim amendment

Ratio Decidendi

The trial judge's exercise of discretion in refusing to award costs to the successful plaintiff was affected by irrelevant or incorrect considerations and thus must be set aside. However, because the proceedings were protracted over a small sum, involved amendment of claim, discontinuance against one defendant, and mutual responsibility for an adjournment, the appropriate exercise of discretion is to order the third defendant to pay half the plaintiff's costs in the District Court.

Court Disposition

Appeal allowed; costs order below set aside; judgment for plaintiff in amended sum with costs orders as specified.

Orders

  • Appeal allowed.
  • Judgment below set aside.