McInnes v Rheem Australia Pty Limited [2021] NSWCA 89

McInnes v Rheem Australia Pty Limited [2021] NSWCA 89

Leave to appeal was refused because Rheem was the successful party overall and the primary judge's apportionment of costs was open on the mixed outcome of the proceedings. The primary judge did not misunderstand the relevant event for UCPR r 42.1, and there was no arguable House v The King error. The reasonableness point was not advanced below and could not found an appeal; allowing Ms McInnes to make a new and different costs application on appeal would be inimical to the interests of justice. The proposed appeal raised no question of principle or general public importance and disclosed no injustice more than merely arguable.

Jurisdiction
Australia
Judgment Date
17 May 2021
Procedural Posture
Application for Leave to Appeal Against a Costs Order / Court of Appeal Summons Seeking Leave to Appeal, Heard Concurrently With the Appeal Assuming Leave
Outcome
Summons seeking leave to appeal is dismissed with costs.
Legal Topics
['costs Following the Event' 'apportionment of Costs' 'leave to Appeal From Costs Order' 'new Point on Appeal' 'appellate Review of Discretionary Decisions']
['costs' 'appeals' 'civil Procedure'] ['costs Following the Event' 'apportionment of Costs' 'leave to Appeal From Costs Order' 'new Point on Appeal' 'appellate Review of Discretionary Decisions']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against a Costs Order / Court of Appeal Summons Seeking Leave to Appeal, Heard Concurrently With the Appeal Assuming Leave

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the costs order made by Parker J.' 'Whether the primary judge erred in characterising the result after the hearing as a draw rather than a complete success for Ms McInnes.' "Whether the primary judge failed to consider the reasonableness of Ms McInnes' conduct of the proceedings when apportioning costs." 'Whether Ms McInnes should be permitted to raise on appeal a new and different costs application not advanced below.']

Ratio Decidendi

Leave to appeal was refused because Rheem was the successful party overall and the primary judge's apportionment of costs was open on the mixed outcome of the proceedings. The primary judge did not misunderstand the relevant event for UCPR r 42.1, and there was no arguable House v The King error. The reasonableness point was not advanced below and could not found an appeal; allowing Ms McInnes to make a new and different costs application on appeal would be inimical to the interests of justice. The proposed appeal raised no question of principle or general public importance and disclosed no injustice more than merely arguable.

Court Disposition

Summons seeking leave to appeal is dismissed with costs.

Orders

  • ['The summons seeking leave to appeal should be dismissed with costs.']