Mills v Walsh (Costs) [2023] NSWCA 97

Mills v Walsh (Costs) [2023] NSWCA 97

Ms Zhang ratified the conduct of Coleman & Greig in filing the appeal in her name and was a party to the appeal from the outset. She did not clearly and unequivocally give instructions for discontinuance until 2 September 2022, and Mr Walsh was entitled to regard her as an active appellant until she applied to discontinue. There was no sufficient basis to make a contrary order under r 42.19, and it was not fair and reasonable to relieve her from joint and several liability with Mr Mills for Mr Walsh's costs up to and including 6 September 2022, particularly because the appeal was for her benefit and could have affected liabilities or the matrimonial property adjustment.

Jurisdiction
Australia
Judgment Date
16 May 2023
Procedural Posture
Costs / Court of Appeal Determination on the Papers of Costs Following Discontinuance by the Second Respondent and Dismissal of the Appeal
Outcome
Order varied so that the appellant and second respondent are liable for the first respondent's costs of the appeal up to and including 6 September 2022, and the appellant alone is liable thereafter.
Legal Topics
['party/party Costs' 'discontinuance of Appeal' 'costs Discretion' 'joint and Several Liability for Costs' "ratification of Solicitors' Conduct"]
['costs' 'civil Procedure' 'appellate Procedure'] ['party/party Costs' 'discontinuance of Appeal' 'costs Discretion' 'joint and Several Liability for Costs' "ratification of Solicitors' Conduct"]

Case Brief

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Procedural Posture

Costs / Court of Appeal Determination on the Papers of Costs Following Discontinuance by the Second Respondent and Dismissal of the Appeal

Legal Issues

  1. 1 ['Whether Ms Zhang authorised or ratified the filing of an appeal in her name.' "Whether Ms Zhang should be liable to pay Mr Walsh's costs up to the date of discontinuance." "Whether Mr Mills was entitled to an order making Ms Zhang jointly and severally liable with him for Mr Walsh's costs up to and including 6 September 2022."]

Ratio Decidendi

Ms Zhang ratified the conduct of Coleman & Greig in filing the appeal in her name and was a party to the appeal from the outset. She did not clearly and unequivocally give instructions for discontinuance until 2 September 2022, and Mr Walsh was entitled to regard her as an active appellant until she applied to discontinue. There was no sufficient basis to make a contrary order under r 42.19, and it was not fair and reasonable to relieve her from joint and several liability with Mr Mills for Mr Walsh's costs up to and including 6 September 2022, particularly because the appeal was for her benefit and could have affected liabilities or the matrimonial property adjustment.

Court Disposition

Order varied so that the appellant and second respondent are liable for the first respondent's costs of the appeal up to and including 6 September 2022, and the appellant alone is liable thereafter.

Orders

  • ['Vary order (2) made on 8 December 2022 to read as follows: "(2) Order that the appellant and the second respondent pay the first respondent\'s costs of the appeal up to and including 6 September 2022 and that the appellant pay the first respondent\'s costs of the appeal thereafter."']