Small v Tyco Projects (Australia) Pty Ltd (No 2) [2007] NSWIRComm 120

Small v Tyco Projects (Australia) Pty Ltd (No 2) [2007] NSWIRComm 120

Because the appellant was successful in a substantial respect as a result of the appeal, although not on all matters, the costs order at first instance should be set aside and the respondent should pay the appellant's costs of the proceedings at first instance. The appellant did not establish a sufficient basis for indemnity costs of the appeal, so the original appeal costs order was not revisited except to clarify that it extended to the costs argument heard that day.

Jurisdiction
Australia
Judgment Date
22 May 2007
Procedural Posture
Application for Leave to Appeal and Appeal; Costs / Full Bench Determination of Costs After Appeal
Outcome
Costs order at first instance set aside and replaced with an order that the respondent pay the appellant's costs at first instance; indemnity costs for the appeal refused; original appeal costs order clarified.
Legal Topics
['costs' 'appeal Costs' 'costs at First Instance' 'slip Rule' 'rule 203']
['industrial Relations' 'civil Procedure'] ['costs' 'appeal Costs' 'costs at First Instance' 'slip Rule' 'rule 203']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal; Costs / Full Bench Determination of Costs After Appeal

Legal Issues

  1. 1 ['Whether the Full Bench had power to make costs orders after the appeal judgment where no order had been made as to costs at first instance.' 'Whether the appellant should receive costs of the proceedings at first instance.' 'Whether the appellant should receive indemnity costs for the appeal proceedings.']

Ratio Decidendi

Because the appellant was successful in a substantial respect as a result of the appeal, although not on all matters, the costs order at first instance should be set aside and the respondent should pay the appellant's costs of the proceedings at first instance. The appellant did not establish a sufficient basis for indemnity costs of the appeal, so the original appeal costs order was not revisited except to clarify that it extended to the costs argument heard that day.

Court Disposition

Costs order at first instance set aside and replaced with an order that the respondent pay the appellant's costs at first instance; indemnity costs for the appeal refused; original appeal costs order clarified.

Orders

  • ["The costs order made by his Honour Justice Staff at first instance is set aside. In lieu thereof the Court orders that the respondent pay the appellant's costs of the proceedings at first instance as agreed or as assessed." 'The Court, for more abundant caution, makes clear that the original costs order made in...