Precision Flooring Pty Ltd v Armstrong [2022] NSWSC 1006

Precision Flooring Pty Ltd v Armstrong [2022] NSWSC 1006

The plaintiff was the successful appellant and the defendant had strenuously contested the appeal, including on the issues of law on which the plaintiff substantially succeeded. The unsuccessful procedural fairness ground occupied little time and the added ground did not add to the burden of the case, so there was no proper basis to depart from the general rule that appeal costs follow the event. Costs of the Local Court proceedings should be costs in the cause on remittal because the merits have not yet been determined, both parties have incurred or will incur costs thrown away, and the Court lacked a proper basis to determine first instance costs at this stage. The defendant should...

Jurisdiction
Australia
Judgment Date
16 August 2022
Procedural Posture
Costs on Appeal From Local Court Proceedings / Costs Determined on the Papers After Appeal Allowed and Matter Remitted to the Local Court
Outcome
Plaintiff to have costs of the appeal; Local Court costs to be costs in the cause on remittal; defendant to be granted an indemnity certificate; plaintiff directed to bring in Short Minutes of Order.
Legal Topics
['discretion as to Costs' 'costs Follow the Event' 'costs of Appeal' 'costs of Local Court Proceedings' "suitors' Fund Indemnity Certificate" 'remittal to Local Court']
['civil Procedure' 'costs' 'appeals'] ['discretion as to Costs' 'costs Follow the Event' 'costs of Appeal' 'costs of Local Court Proceedings' "suitors' Fund Indemnity Certificate" 'remittal to Local Court']

Case Brief

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Procedural Posture

Costs on Appeal From Local Court Proceedings / Costs Determined on the Papers After Appeal Allowed and Matter Remitted to the Local Court

Legal Issues

  1. 1 ['Whether the plaintiff, as successful appellant, should have its costs of the appeal.' 'Whether any apportionment or departure from the general rule that costs follow the event was warranted because the appeal succeeded due to error by the Local Court Magistrate and the merits remained undetermined.' 'Whether costs of the Local Court proceedings should be ordered in favour of the plaintiff or treated as costs in the cause on remittal.' "Whether the defendant should be granted an indemnity certificate under the Suitors' Fund Act 1951 (NSW)."]

Ratio Decidendi

The plaintiff was the successful appellant and the defendant had strenuously contested the appeal, including on the issues of law on which the plaintiff substantially succeeded. The unsuccessful procedural fairness ground occupied little time and the added ground did not add to the burden of the case, so there was no proper basis to depart from the general rule that appeal costs follow the event. Costs of the Local Court proceedings should be costs in the cause on remittal because the merits have not yet been determined, both parties have incurred or will incur costs thrown away, and the Court lacked a proper basis to determine first instance costs at this stage. The defendant should...

Court Disposition

Plaintiff to have costs of the appeal; Local Court costs to be costs in the cause on remittal; defendant to be granted an indemnity certificate; plaintiff directed to bring in Short Minutes of Order.

Orders

  • ['The plaintiff should have the costs of the appeal as agreed or, in default, as assessed.' 'All costs of the Local Court proceedings should be determined in that Court, in substance as costs in the cause of the Local Court proceedings.' "The defendant should be granted an indemnity certificate under the Suitors'...