Brereton v Higgins [2004] NSWCA 48

Brereton v Higgins [2004] NSWCA 48

Leave to appeal was refused because none of the alleged errors established a basis for appellate intervention in the discretionary costs order. Gibson DCJ was not bound to follow O'Connor DCJ's earlier interlocutory view, did not apply Pt 39A r 12 as a governing rule but used it to illustrate the relevance of small amounts in costs discretion, any misunderstanding about the cross-claim would not have affected the result, and she exercised the discontinuance costs discretion judicially by considering how best to do justice between the parties.

Jurisdiction
Australia
Judgment Date
01 March 2004
Procedural Posture
Application for Leave to Appeal From Costs Order Following Discontinuance / New South Wales Court of Appeal; Leave Application Heard as an Appeal
Outcome
Leave to appeal refused. No order as to costs.
Legal Topics
['discontinuance' 'costs Discretion' 'leave to Appeal' 'appellate Review of Discretionary Costs Orders']
['costs' 'civil Procedure'] ['discontinuance' 'costs Discretion' 'leave to Appeal' 'appellate Review of Discretionary Costs Orders']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Costs Order Following Discontinuance / New South Wales Court of Appeal; Leave Application Heard as an Appeal

Legal Issues

  1. 1 ["Whether the District Court judge erred in exercising the costs discretion differently from O'Connor DCJ's earlier interlocutory decision." 'Whether the District Court judge took into account an irrelevant consideration by referring to Pt 39A r 12 of the District Court Rules.' "Whether the District Court judge took into account an irrelevant matter by considering the small compass of the cross-claim when the claimant sought costs of the opponent's claim." "Whether the District Court judge failed to apply principles concerning discontinuance and preservation of a defendant's litigation advantage."]

Ratio Decidendi

Leave to appeal was refused because none of the alleged errors established a basis for appellate intervention in the discretionary costs order. Gibson DCJ was not bound to follow O'Connor DCJ's earlier interlocutory view, did not apply Pt 39A r 12 as a governing rule but used it to illustrate the relevance of small amounts in costs discretion, any misunderstanding about the cross-claim would not have affected the result, and she exercised the discontinuance costs discretion judicially by considering how best to do justice between the parties.

Court Disposition

Leave to appeal refused. No order as to costs.

Orders

  • ['Leave to appeal refused.' 'No order as to costs.']