SMITS & ORS v ROACH & ORS [NO 2] [2004] NSWCA 463

SMITS & ORS v ROACH & ORS [NO 2] [2004] NSWCA 463

The allocation of costs must reflect only the extent to which the parties succeeded on the issues pursued. Where appellants pursued and then abandoned grounds of appeal, and substantial parts of their case failed, they should not recover costs related to those matters. As such, the costs payable by the Roach companies to the first and second appellants were limited to one-quarter for proceedings at first instance and one-half for the appeal, excluding costs relating to abandoned arguments.

Jurisdiction
Australia
Judgment Date
17 December 2004
Procedural Posture
Appeal / Costs Judgment After Appeal Decision
Outcome
Partial costs awarded as specified; other orders as per paragraph 21.
Legal Topics
['costs' 'appeal Procedure' 'specific Performance']
['civil Procedure'] ['costs' 'appeal Procedure' 'specific Performance']

Case Brief

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Procedural Posture

Appeal / Costs Judgment After Appeal Decision

Legal Issues

  1. 1 ['Appropriate allocation of costs where grounds of appeal were not relied upon' 'Effect of concessions on entitlement to costs and specific orders' 'Whether costs order should be revisited following partial success and abandonment of claims']

Ratio Decidendi

The allocation of costs must reflect only the extent to which the parties succeeded on the issues pursued. Where appellants pursued and then abandoned grounds of appeal, and substantial parts of their case failed, they should not recover costs related to those matters. As such, the costs payable by the Roach companies to the first and second appellants were limited to one-quarter for proceedings at first instance and one-half for the appeal, excluding costs relating to abandoned arguments.

Court Disposition

Partial costs awarded as specified; other orders as per paragraph 21.

Orders

  • ['4AA. DECLARE that a valid and binding agreement was made on or about 16 September 1999 between the first and second appellants and the third and fourth respondents, entitling the former to claim as creditors and submit proofs in likudations up to specified amounts.' '4A. Proceedings by Plantoy Pty Ltd as third...