Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235

Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235

Although the appellant succeeded in having the trial judge's orders reversed, he failed on two legally complex, discrete issues which were raised for the first time on appeal and occupied a substantial part of the written submissions. In the exercise of the Court's costs discretion, he should not receive the entirety of his appeal costs, but should receive part because the appeal was necessary to correct the erroneous order below. There was no basis to disturb his entitlement to costs at first instance.

Jurisdiction
Australia
Judgment Date
11 August 2011
Procedural Posture
Costs / Notice of Motion Under Uniform Civil Procedure Rules 2005 R 36.16 to Set Aside Costs Orders, Decided on the Papers
Outcome
Motion allowed in part; appeal costs order varied.
Legal Topics
['costs on Appeal' 'variation or Setting Aside of Orders' 'new Issues Raised on Appeal' 'judicial Review of Medical Assessment Referral Decisions']
['civil Procedure' 'costs' 'motor Accidents'] ['costs on Appeal' 'variation or Setting Aside of Orders' 'new Issues Raised on Appeal' 'judicial Review of Medical Assessment Referral Decisions']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs / Notice of Motion Under Uniform Civil Procedure Rules 2005 R 36.16 to Set Aside Costs Orders, Decided on the Papers

Legal Issues

  1. 1 ['Whether orders 6 and 7 made on 20 April 2011 should be set aside under Uniform Civil Procedure Rules 2005 r 36.16.' 'Whether the appellant should retain the whole of his costs of the appeal despite failing on two principal issues raised for the first time on appeal.' "Whether the first respondent should pay only part of the appellant's costs of the appeal." 'Whether the appellant should be deprived of his costs at first instance.']

Ratio Decidendi

Although the appellant succeeded in having the trial judge's orders reversed, he failed on two legally complex, discrete issues which were raised for the first time on appeal and occupied a substantial part of the written submissions. In the exercise of the Court's costs discretion, he should not receive the entirety of his appeal costs, but should receive part because the appeal was necessary to correct the erroneous order below. There was no basis to disturb his entitlement to costs at first instance.

Court Disposition

Motion allowed in part; appeal costs order varied.

Orders

  • ['Set aside that part of order 6 made on 20 April 2011 relating to the costs of the appeal.' "Order that the first respondent pay one third of the appellant's costs of the appeal."]