Cooper v Mulcahy; Mulcahy v Cooper (No 2) [2013] NSWCA 216

Cooper v Mulcahy; Mulcahy v Cooper (No 2) [2013] NSWCA 216

Leave to appeal against the property claim costs order was refused because the primary judge properly applied the costs discretion by reference to the relevant event, the parties' negotiated and litigated positions, their relative success and Ms Mulcahy's inefficient conduct, and Mr Cooper improved his position on the Property (Relationships) Act claim on appeal. The original cross-claim costs order could not stand because Ms Mulcahy failed to defend most of the judgment on her assault cross-claim; although she succeeded on one assault and on an important contested issue, her success was limited compared with the time devoted to the cross-claim, warranting recovery of only 20 percent of...

Jurisdiction
Australia
Judgment Date
18 July 2013
Procedural Posture
Application for Leave to Appeal Against Costs Order and Determination of Trial Costs Following Appeal / Court of Appeal, on the Papers
Outcome
Leave to appeal against the costs decision was refused; the cross-claim costs order was set aside and replaced with an order that Mr Cooper pay 20 percent of Ms Mulcahy's costs of the cross-claim on the ordinary basis.
Legal Topics
['costs Follow the Event' 'leave to Appeal Against Costs' 'apportionment of Costs' 'property Adjustment Under Property (relationships) Act 1984 (nsw)' 'cross Claim for Assault']
['costs' 'property Relationships' 'torts'] ['costs Follow the Event' 'leave to Appeal Against Costs' 'apportionment of Costs' 'property Adjustment Under Property (relationships) Act 1984 (nsw)' 'cross Claim for Assault']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Costs Order and Determination of Trial Costs Following Appeal / Court of Appeal, on the Papers

Legal Issues

  1. 1 ["Whether leave should be granted to appeal against the order that Ms Mulcahy pay Mr Cooper's costs of the Property (Relationships) Act 1984 (NSW) claim." "Whether the existing order that Mr Cooper pay 90 percent of Ms Mulcahy's costs of her assault cross-claim should be set aside after the appeal substantially reduced her success on the cross-claim." 'Whether a global costs order should be made for the trial costs or separate orders should be maintained for the property claim and the assault cross-claim.' "Whether the parties' financial positions could be taken into account in determining costs."]

Ratio Decidendi

Leave to appeal against the property claim costs order was refused because the primary judge properly applied the costs discretion by reference to the relevant event, the parties' negotiated and litigated positions, their relative success and Ms Mulcahy's inefficient conduct, and Mr Cooper improved his position on the Property (Relationships) Act claim on appeal. The original cross-claim costs order could not stand because Ms Mulcahy failed to defend most of the judgment on her assault cross-claim; although she succeeded on one assault and on an important contested issue, her success was limited compared with the time devoted to the cross-claim, warranting recovery of only 20 percent of...

Court Disposition

Leave to appeal against the costs decision was refused; the cross-claim costs order was set aside and replaced with an order that Mr Cooper pay 20 percent of Ms Mulcahy's costs of the cross-claim on the ordinary basis.

Orders

  • ['Refuse leave to appeal against the decision of Macready AsJ of 29 May 2012 as to costs.' 'The applicant (Ms Mulcahy) is to pay the costs of the respondent (Mr Cooper) of the leave application.' "Set aside the order of Macready AsJ that the plaintiff (Mr Cooper) pay 90 percent of the defendant's (Ms Mulcahy's)...