Twigg & Anor. v. Kung & Anor. [2003] NSWCA 42

Twigg & Anor. v. Kung & Anor. [2003] NSWCA 42

McGlynn was affected by the relief claimed by the appellants because success on the appeal would remove the basis on which Kung's cross-claim against McGlynn had been dismissed and create a reasonable possibility of an attempt to revive that cross-claim. The appellants should pay McGlynn's costs up to 11 June 2002, but because both Kung and McGlynn were at fault in not achieving a clearer arrangement thereafter, with Kung marginally more at fault, Kung should pay one half of McGlynn's appeal costs incurred after 11 June 2002. No indemnity costs order was warranted.

Jurisdiction
Australia
Judgment Date
07 March 2003
Procedural Posture
Appeal Costs Judgment / Motions in Chambers After Dismissal of Appeal
Outcome
The costs order made on 11 July 2002 was set aside and substituted costs orders were made apportioning responsibility between the appellants and Kung; McGlynn did not receive indemnity costs.
Legal Topics
['joinder of Respondent to Appeal' 'submitting Appearance' 'cross Claim After Dismissal of Appeal Leave Application' 'apportionment of Appeal Costs' 'indemnity Costs']
['practice and Procedure' 'appeals' 'costs'] ['joinder of Respondent to Appeal' 'submitting Appearance' 'cross Claim After Dismissal of Appeal Leave Application' 'apportionment of Appeal Costs' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal Costs Judgment / Motions in Chambers After Dismissal of Appeal

Legal Issues

  1. 1 ['Whether McGlynn was a party affected by the relief sought by the appellants or interested in maintaining the decision under appeal within Pt.51 r.9.' "Whether the appellants should be liable for McGlynn's costs after McGlynn was joined as an additional respondent on Kung's application." "Whether Kung should pay McGlynn's costs on an indemnity basis." "How costs should be apportioned for McGlynn's involvement in the appeal before and after 11 June 2002."]

Ratio Decidendi

McGlynn was affected by the relief claimed by the appellants because success on the appeal would remove the basis on which Kung's cross-claim against McGlynn had been dismissed and create a reasonable possibility of an attempt to revive that cross-claim. The appellants should pay McGlynn's costs up to 11 June 2002, but because both Kung and McGlynn were at fault in not achieving a clearer arrangement thereafter, with Kung marginally more at fault, Kung should pay one half of McGlynn's appeal costs incurred after 11 June 2002. No indemnity costs order was warranted.

Court Disposition

The costs order made on 11 July 2002 was set aside and substituted costs orders were made apportioning responsibility between the appellants and Kung; McGlynn did not receive indemnity costs.

Orders

  • ['Set aside costs order made on 11 July 2002.' "Order the appellants to pay Kung's costs of the appellants' appeal, including those ordered to be paid by Registrar Irwin on 24 February 2002, and also McGlynn's costs up to 11 June 2002." "Order Kung to pay one half of McGlynn's costs incurred in relation to the...