Hutchison Construction Services Pty Ltd v Fogg (No 2) [2016] NSWCA 190

Hutchison Construction Services Pty Ltd v Fogg (No 2) [2016] NSWCA 190

Although Mr Fogg obtained an increased judgment, his success on the cross-appeal was modest and the cross-appeal was substantially unsuccessful when assessed by the number, value, importance and complexity of the failed or abandoned grounds. The appropriate order was therefore no order as to the costs of the cross-appeal, while Hutchison, having succeeded on the costs application, was entitled to its costs of that application.

Jurisdiction
Australia
Judgment Date
04 August 2016
Procedural Posture
Costs / On the Papers Determination of Judgment Sum and Costs Following Dismissal of Appeal and Partial Allowance of Cross Appeal
Outcome
Appeal costs agreed in favour of Mr Fogg and Les Quatre Musketeers Pty Ltd; no order as to costs of the cross-appeal; Hutchison awarded costs of the costs application.
Legal Topics
['costs of Appeal' 'costs of Cross Appeal' 'limited Success on Cross Appeal' 'civil Procedure Act 2005 (nsw), S 98']
['civil Procedure' 'costs'] ['costs of Appeal' 'costs of Cross Appeal' 'limited Success on Cross Appeal' 'civil Procedure Act 2005 (nsw), S 98']

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Procedural Posture

Costs / On the Papers Determination of Judgment Sum and Costs Following Dismissal of Appeal and Partial Allowance of Cross Appeal

Legal Issues

  1. 1 ['What costs order should be made for the cross-appeal where Mr Fogg succeeded on only one ground and obtained an increased judgment sum.' "Whether Mr Fogg's partial success on the cross-appeal was sufficiently material to justify a favourable costs order." 'Whether the Court should make an issues-based costs order differentiating between successful and unsuccessful grounds.']

Ratio Decidendi

Although Mr Fogg obtained an increased judgment, his success on the cross-appeal was modest and the cross-appeal was substantially unsuccessful when assessed by the number, value, importance and complexity of the failed or abandoned grounds. The appropriate order was therefore no order as to the costs of the cross-appeal, while Hutchison, having succeeded on the costs application, was entitled to its costs of that application.

Court Disposition

Appeal costs agreed in favour of Mr Fogg and Les Quatre Musketeers Pty Ltd; no order as to costs of the cross-appeal; Hutchison awarded costs of the costs application.

Orders

  • ['Set aside order 1 made on 10 June 2015 and in lieu thereof give judgment to Mr Fogg as against Hutchison Constructions Services Pty Ltd in the sum of $1,002,734.18.' 'Hutchison Constructions Services Pty Ltd to pay the costs of Mr Fogg and Les Quatre Musketeers Pty Ltd of the appeal.' 'No order as to the costs of...