Turkmani v Visvalingam (No 2) [2009] NSWCA 279

Turkmani v Visvalingam (No 2) [2009] NSWCA 279

The liability and contributory negligence apportionment issues were not clearly severable, because the arguments directed to liability also bore on the Court's assessment of the respective degrees of fault. Although liability might be regarded as dominant, the appellant achieved very significant success by reducing the judgment from about one million dollars to about half a million dollars, and its success on contributory negligence required close attention to matters also raised in the liability submissions. The first ground therefore did not justify departure from the ordinary rule. However, inefficient preparation of the blue books and red book added costs on both sides, so the...

Jurisdiction
Australia
Judgment Date
07 September 2009
Procedural Posture
Consequential Orders / Application on the Papers for Variation of Costs Orders After Appeal Allowed in Part
Outcome
Respondents' application to vary the Court of Appeal costs order allowed in part; costs order below varied by consent.
Legal Topics
['costs Follow the Event' 'departure From Ordinary Costs Rule' 'severable or Dominant Issues' 'contributory Negligence Apportionment' 'inefficient Conduct of Appeal' 'appeal Books']
['costs' 'civil Procedure' 'appeals'] ['costs Follow the Event' 'departure From Ordinary Costs Rule' 'severable or Dominant Issues' 'contributory Negligence Apportionment' 'inefficient Conduct of Appeal' 'appeal Books']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Consequential Orders / Application on the Papers for Variation of Costs Orders After Appeal Allowed in Part

Legal Issues

  1. 1 ['Whether the costs order in the Court of Appeal should be varied because the appellant failed on the liability issue said to be dominant while succeeding only on contributory negligence apportionment.' "Whether inefficient preparation and prosecution of the appeal, including irrelevant and unsatisfactory material in the blue books and red book, justified excluding some costs from the appellant's costs of the appeal." "Whether the costs order below should be varied by consent so that the appellant pay the respondents' costs of the proceedings on the ordinary basis."]

Ratio Decidendi

The liability and contributory negligence apportionment issues were not clearly severable, because the arguments directed to liability also bore on the Court's assessment of the respective degrees of fault. Although liability might be regarded as dominant, the appellant achieved very significant success by reducing the judgment from about one million dollars to about half a million dollars, and its success on contributory negligence required close attention to matters also raised in the liability submissions. The first ground therefore did not justify departure from the ordinary rule. However, inefficient preparation of the blue books and red book added costs on both sides, so the...

Court Disposition

Respondents' application to vary the Court of Appeal costs order allowed in part; costs order below varied by consent.

Orders

  • ['Costs of the appellant of the appeal payable pursuant to order (3) not to include the costs of preparation of the blue books and the red book, or the costs of this application.' "The costs order below varied to an order that the appellant pay the respondents' costs of the proceedings on the ordinary basis."]