Network Ten Pty Ltd v TX Australia Pty Ltd (No 2) [2019] NSWCA 51

Network Ten Pty Ltd v TX Australia Pty Ltd (No 2) [2019] NSWCA 51

Although the applicant succeeded on the main issue, it was unsuccessful on separable issues and therefore should have its costs of the appeal and only 50% of the costs below, to be paid by the second and third respondents. Indemnity costs against the respondents for TXA were refused since this was not a derivative action and TXA was a necessary party, not criticized for its role.

Parties
Applicant: Network Ten Pty Ltd; First Respondent: TX Australia Pty Ltd; Second Respondent: Nine Network Australia Pty Ltd; Third Respondent: Seven Network (Operations) Ltd
Jurisdiction
Australia
Judgment Date
22 March 2019
Procedural Posture
Appeal / Costs Determination After Appeal
Outcome
Costs orders made in favour of the appellant for the appeal and 50% of costs below, to be paid by the second and third respondents.
Legal Topics
Costs, Party/party Costs, Apportionment, Indemnity Costs
Civil Procedure Costs Party/party Costs Apportionment Indemnity Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Network Ten Pty Ltd

Applicant

TX Australia Pty Ltd

First Respondent

Nine Network Australia Pty Ltd

Second Respondent

Seven Network (Operations) Ltd

Third Respondent

Procedural Posture

Appeal / Costs Determination After Appeal

Legal Issues

  1. 1 Whether costs should follow the event where the successful party was unsuccessful on certain issues
  2. 2 Whether issues were clearly dominant or separable for costs apportionment
  3. 3 Whether second and third respondents should indemnify the first respondent for its costs

Ratio Decidendi

Although the applicant succeeded on the main issue, it was unsuccessful on separable issues and therefore should have its costs of the appeal and only 50% of the costs below, to be paid by the second and third respondents. Indemnity costs against the respondents for TXA were refused since this was not a derivative action and TXA was a necessary party, not criticized for its role.

Court Disposition

Costs orders made in favour of the appellant for the appeal and 50% of costs below, to be paid by the second and third respondents.

Orders

  • Order that the second and third respondents pay the appellant's costs of the appeal and 50% of the appellant's costs in the Court below.