Rogers v Kabriel (No 2) [1999] NSWSC 474

Rogers v Kabriel (No 2) [1999] NSWSC 474

Because the plaintiffs succeeded against the third defendant but only on limited counts and much of the factual material was unnecessary, they were not entitled to their full costs and should recover fifty percent of their costs of the issues raised against the third defendant. Because there was no evidence about the retainer of the first and third defendants' common solicitors, the court inferred a joint retainer and ordered the plaintiffs to pay one half of the first defendant's costs.

Jurisdiction
Australia
Judgment Date
14 May 1999
Procedural Posture
Costs Ruling in Supreme Court of New South Wales Equity Division Proceedings / Ancillary Costs Question After Reasons for Judgment and Orders on Liability
Outcome
Costs orders made apportioning costs between the plaintiffs, the first defendant, and the third defendant.
Legal Topics
['costs Discretion' 'apportionment of Costs' 'co Defendants Represented by Same Solicitors and Counsel' 'successful Party Not Succeeding on Every Count' 'possible Insolvency and Costs']
['civil Procedure' 'costs'] ['costs Discretion' 'apportionment of Costs' 'co Defendants Represented by Same Solicitors and Counsel' 'successful Party Not Succeeding on Every Count' 'possible Insolvency and Costs']

Case Brief

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Procedural Posture

Costs Ruling in Supreme Court of New South Wales Equity Division Proceedings / Ancillary Costs Question After Reasons for Judgment and Orders on Liability

Legal Issues

  1. 1 ['What costs order should be made in favour of the plaintiffs against the third defendant where they succeeded against it but not on every count.' 'What costs order should be made in favour of the first defendant where the plaintiffs failed against him but the first and third defendants were represented by the same solicitors and counsel.' 'Whether possible insolvency of a party should affect the form or substance of the costs order.']

Ratio Decidendi

Because the plaintiffs succeeded against the third defendant but only on limited counts and much of the factual material was unnecessary, they were not entitled to their full costs and should recover fifty percent of their costs of the issues raised against the third defendant. Because there was no evidence about the retainer of the first and third defendants' common solicitors, the court inferred a joint retainer and ordered the plaintiffs to pay one half of the first defendant's costs.

Court Disposition

Costs orders made apportioning costs between the plaintiffs, the first defendant, and the third defendant.

Orders

  • ["The plaintiffs pay one half of the first defendant's costs." "The third defendant pay fifty percent of the plaintiffs' costs of the issues raised against it." 'The exhibits may be returned.']