Ryan v. Dries (On Costs) [2002] NSWCA 112

Ryan v. Dries (On Costs) [2002] NSWCA 112

Although the appellant had raised a ground relying on contribution before 9 August 2001, appropriate relief based on that ground was not sought until the Further Supplementary Notice of Appeal filed on that date. The necessity for the appeal and increased appeal costs arose partly because equitable accounting was not properly sought below or properly sought on appeal until 9 August 2001. The appellant therefore should not receive all costs of the appeal, and the fair mechanism was to award only costs incurred since 9 August 2001, excluding costs incurred since 6 February 2002. The Master's costs order remained appropriate.

Jurisdiction
Australia
Judgment Date
26 April 2002
Procedural Posture
Appeal Costs / Judgment on Costs
Outcome
Order 4 made on 6 February 2002 was vacated and replaced with a limited costs order in favour of the appellant; the Master's costs order was not disturbed.
Legal Topics
['costs of Appeal' 'costs Follow the Event' 'equitable Contribution' 'equitable Accounting' "suitors' Fund Certificate"]
['costs' 'equity'] ['costs of Appeal' 'costs Follow the Event' 'equitable Contribution' 'equitable Accounting' "suitors' Fund Certificate"]

Case Brief

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Procedural Posture

Appeal Costs / Judgment on Costs

Legal Issues

  1. 1 ['Whether a successful appellant should receive the costs of the appeal where the appeal succeeded mainly on a ground for which appropriate relief was not sought until a later notice of appeal filed on 9 August 2001.' 'Whether the costs order made by the Master should be replaced by an order that each party bear its own costs.']

Ratio Decidendi

Although the appellant had raised a ground relying on contribution before 9 August 2001, appropriate relief based on that ground was not sought until the Further Supplementary Notice of Appeal filed on that date. The necessity for the appeal and increased appeal costs arose partly because equitable accounting was not properly sought below or properly sought on appeal until 9 August 2001. The appellant therefore should not receive all costs of the appeal, and the fair mechanism was to award only costs incurred since 9 August 2001, excluding costs incurred since 6 February 2002. The Master's costs order remained appropriate.

Court Disposition

Order 4 made on 6 February 2002 was vacated and replaced with a limited costs order in favour of the appellant; the Master's costs order was not disturbed.

Orders

  • ['Order 4 made on 6th February 2002 be vacated.' "Order that the respondent pay the appellant's costs of the appeal incurred since 9th August 2001, excluding costs incurred since 6th February 2002, and that she have a suitors' fund certificate if otherwise entitled."]