Middleton v Erwin (No 2) [2009] NSWSC 200

Middleton v Erwin (No 2) [2009] NSWSC 200

The plaintiff was not entitled to a Bullock order because, although joining the second defendant may have been reasonable, the first defendant did no more than deny liability and raise mechanical failure, positions he was entitled to take. He did not mislead or conceal anything and no conduct by him, or state of affairs involving him, made it fair to impose liability on him for the second defendant's costs. The plaintiff's joinder of the second defendant was a forensic decision not relevantly caused by the first defendant's conduct.

Jurisdiction
Australia
Judgment Date
27 March 2009
Procedural Posture
Consequential Costs Orders in Common Law Proceedings / After Principal Judgment; Determination of Whether the Plaintiff or the First Defendant Should Pay the Second Defendant's Costs
Outcome
Plaintiff succeeded against the first defendant for the agreed damages amount; plaintiff failed against the second defendant; plaintiff to pay the second defendant's costs; first defendant's cross-claim against the second defendant dismissed with costs.
Legal Topics
['bullock Order' 'sanderson Order' 'costs of Successful Defendant' 'joinder of Defendants' 'cross Claim']
['costs' 'civil Procedure' 'negligence'] ['bullock Order' 'sanderson Order' 'costs of Successful Defendant' 'joinder of Defendants' 'cross Claim']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Consequential Costs Orders in Common Law Proceedings / After Principal Judgment; Determination of Whether the Plaintiff or the First Defendant Should Pay the Second Defendant's Costs

Legal Issues

  1. 1 ["Whether the plaintiff or the first defendant should pay the second defendant's costs after the plaintiff succeeded against the first defendant but failed against the second defendant." "Whether the first defendant's conduct made it fair to impose liability on him for the costs of the successful second defendant." 'Whether it was sufficient that it may have been reasonable for the plaintiff to join the second defendant.']

Ratio Decidendi

The plaintiff was not entitled to a Bullock order because, although joining the second defendant may have been reasonable, the first defendant did no more than deny liability and raise mechanical failure, positions he was entitled to take. He did not mislead or conceal anything and no conduct by him, or state of affairs involving him, made it fair to impose liability on him for the second defendant's costs. The plaintiff's joinder of the second defendant was a forensic decision not relevantly caused by the first defendant's conduct.

Court Disposition

Plaintiff succeeded against the first defendant for the agreed damages amount; plaintiff failed against the second defendant; plaintiff to pay the second defendant's costs; first defendant's cross-claim against the second defendant dismissed with costs.

Orders

  • ['Verdict for the plaintiff against the first defendant for $3,200,000.' "Order the first defendant to pay the plaintiff's costs." "Verdict for the second defendant on the plaintiff's claim." "Order the plaintiff to pay the second defendant's costs." "Dismiss the first defendant's cross-claim against the second...