Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317

Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317

In circumstances where the respondent, a true adversarial party in commercial litigation, filed a submitting appearance save as to costs, but did not consent to the relief sought, the appellant was still required to prepare and prove its case. No rule or principle justifies depriving the successful appellant of...

Source-derived case information.

Parties
Appellant: Kisimul Holdings Pty Ltd; Respondent: Clear Position Pty Ltd
Jurisdiction
Australia
Judgment Date
15 September 2014
Procedural Posture
Civil Appeal / Costs Determination Following Successful Appeal
Outcome
Respondent ordered to pay appellant's costs in the Court of Appeal; respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if qualified.
Legal Topics
Costs, Appellate Procedure, Submissions on Appearance, Statutory Demand
Civil Procedure Costs Appellate Procedure Submissions on Appearance Statutory Demand

Source-derived case record

Summary, issues, holding and outcome

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Parties

Kisimul Holdings Pty Ltd

Appellant

Clear Position Pty Ltd

Respondent

Procedural Posture

Civil Appeal / Costs Determination Following Successful Appeal

Legal Issues

  1. 1 Whether the respondent should be ordered to pay the appellant's costs in the Court of Appeal when the respondent filed a submitting appearance save as to costs
  2. 2 Effect of submitting appearance on liability for costs
  3. 3 Whether any principle or rule entitles the respondent to immunity from costs after filing submitting appearance

Ratio Decidendi

In circumstances where the respondent, a true adversarial party in commercial litigation, filed a submitting appearance save as to costs, but did not consent to the relief sought, the appellant was still required to prepare and prove its case. No rule or principle justifies depriving the successful appellant of costs solely because the respondent filed a submitting appearance. Accordingly, the respondent should be ordered to pay the appellant's costs of the proceedings in the Court of Appeal.

Court Disposition

Respondent ordered to pay appellant's costs in the Court of Appeal; respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if qualified.

Orders

  • The respondent pay the appellant's costs of the proceedings in this Court.
  • The respondent have a certificate under the Suitors Fund Act 1951 (NSW) if qualified.