Tan v Mitchell [No 2] [2006] NSWCA 228

Tan v Mitchell [No 2] [2006] NSWCA 228

Although the appellant was unsuccessful on liability, she was successful in substantially reducing damages; thus, the respondent should pay 80% of the appellant's costs of the appeal. The indemnity costs order at trial should be set aside and replaced with an order for party/party costs.

Jurisdiction
Australia
Judgment Date
23 August 2006
Procedural Posture
Appeal / Costs Judgment Following Variation of Original Appeal Orders
Outcome
Orders varied: defendant to pay plaintiff's costs at trial on party/party basis; Mr Mitchell to pay 80% of Ms Tan's costs of the appeal.
Legal Topics
['costs' 'appeals']
['civil Procedure'] ['costs' 'appeals']

Case Brief

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Procedural Posture

Appeal / Costs Judgment Following Variation of Original Appeal Orders

Legal Issues

  1. 1 ['Who should bear the costs of the appeal CA 40417/05 after partial success by the appellant' 'Whether the order for indemnity costs at trial should be set aside']

Ratio Decidendi

Although the appellant was unsuccessful on liability, she was successful in substantially reducing damages; thus, the respondent should pay 80% of the appellant's costs of the appeal. The indemnity costs order at trial should be set aside and replaced with an order for party/party costs.

Court Disposition

Orders varied: defendant to pay plaintiff's costs at trial on party/party basis; Mr Mitchell to pay 80% of Ms Tan's costs of the appeal.

Orders

  • ["The order in respect of costs made by the trial judge in action DC 11420/01 be set aside and, in lieu thereof, the defendant pay the plaintiff's costs of the trial in the District Court on a party/party basis." "Mr Mitchell to pay 80% of Ms Tan's costs of the appeal."]