Ferella v Official Trustee in Bankruptcy [2016] NSWCA 27

Ferella v Official Trustee in Bankruptcy [2016] NSWCA 27

The appellants' submissions opposing indemnity costs had no substance. Although the second appellant was not a proper party, no objection had been taken, both appellants were represented and submissions were made for both, and success on those submissions would have benefited the first appellant. The contention about counsel's concession also lacked merit because it was not contested on appeal that there was no live objection to the orders sought below, and the grounds of appeal did not allege misunderstanding by the primary judge. The appeal submissions were not founded on the wrongful joinder or the concession and were so lacking in merit as to justify indemnity costs.

Jurisdiction
Australia
Judgment Date
08 March 2016
Procedural Posture
Costs in Appeal / On the Papers After Dismissal of the Appeal, Determining Whether Indemnity Costs Should Be Ordered
Outcome
Indemnity costs ordered in favour of the first respondent.
Legal Topics
['indemnity Costs' 'appeals as to Costs' 'joinder' 'conveyancing Act 1919 (nsw), S 66 G']
['civil Procedure' 'costs'] ['indemnity Costs' 'appeals as to Costs' 'joinder' 'conveyancing Act 1919 (nsw), S 66 G']

Case Brief

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Procedural Posture

Costs in Appeal / On the Papers After Dismissal of the Appeal, Determining Whether Indemnity Costs Should Be Ordered

Legal Issues

  1. 1 ["Whether the appellants should pay the first respondent's costs of the appeal on an indemnity basis." "Whether the second appellant's wrongful joinder meant he should not be subject to an indemnity costs order or any costs order." "Whether counsel's exchange before the primary judge made it reasonably arguable that there was no unqualified assent to the orders below."]

Ratio Decidendi

The appellants' submissions opposing indemnity costs had no substance. Although the second appellant was not a proper party, no objection had been taken, both appellants were represented and submissions were made for both, and success on those submissions would have benefited the first appellant. The contention about counsel's concession also lacked merit because it was not contested on appeal that there was no live objection to the orders sought below, and the grounds of appeal did not allege misunderstanding by the primary judge. The appeal submissions were not founded on the wrongful joinder or the concession and were so lacking in merit as to justify indemnity costs.

Court Disposition

Indemnity costs ordered in favour of the first respondent.

Orders

  • ["The appellants pay the first respondent's costs of the appeal on an indemnity basis."]