Choo v Zhang (No 2) [2016] NSWCA 301

Choo v Zhang (No 2) [2016] NSWCA 301

Given the severable issues and the fact that the Zhangs obtained a substantially smaller judgment after appeal, it is just that there be no order as to costs at trial and that they pay 70 per cent of the appellant’s costs on the appeal, departing from the general rule as to costs following the event.

Jurisdiction
Australia
Judgment Date
03 November 2016
Procedural Posture
Appeal / Post Trial (costs Determination After Appeal Decision)
Outcome
Orders previously made on 5 August 2016 set aside and replaced: dismissal of claims against Mr Choo subject to existing order, no order as to District Court claim costs (costs to lie where they fall), and respondents to pay 70% of appellant’s costs of the appeal.
Legal Topics
['costs' 'variation of Orders' 'appeal Procedure' 'offers of Compromise']
['civil Procedure'] ['costs' 'variation of Orders' 'appeal Procedure' 'offers of Compromise']

Case Brief

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Procedural Posture

Appeal / Post Trial (costs Determination After Appeal Decision)

Legal Issues

  1. 1 ['Whether the usual rule that costs follow the event should be departed from due to severable issues' 'Whether non-acceptance of an offer of compromise has cost consequences when the offer was made jointly and not accepted' 'Proper allocation of costs after partial success on appeal']

Ratio Decidendi

Given the severable issues and the fact that the Zhangs obtained a substantially smaller judgment after appeal, it is just that there be no order as to costs at trial and that they pay 70 per cent of the appellant’s costs on the appeal, departing from the general rule as to costs following the event.

Court Disposition

Orders previously made on 5 August 2016 set aside and replaced: dismissal of claims against Mr Choo subject to existing order, no order as to District Court claim costs (costs to lie where they fall), and respondents to pay 70% of appellant’s costs of the appeal.

Orders

  • ['Orders 4, 5 and 6 made on 5 August 2016 set aside.' "In lieu, order that subject to Order 7 made on 18 January 2016, the Respondents' (Plaintiffs') claims against Mr Choo (Third Defendant) be dismissed." "No order as to the costs of the Respondents' claim in the District Court against the Appellant, each party to...