Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones (No 2) [2013] NSWSC 572

Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones (No 2) [2013] NSWSC 572

Because the plaintiff succeeded against the second defendant but not the first defendant, and because the Calderbank offer was addressed to both defendants while the first defendant remained successful, the fair order was that the second defendant pay half of the plaintiff's costs of the proceedings below on the ordinary basis, avoiding a complex assessment differentiating costs incurred against each defendant. For the proceedings in this Court, the appeal against the first defendant was dismissed by consent only on the morning of the hearing and the appeal against the second defendant succeeded, so the fair result was no order as to costs.

Jurisdiction
Australia
Judgment Date
02 April 2013
Procedural Posture
Costs / Determination of Costs After Judgment on Appeal
Outcome
Plaintiff granted leave to appeal against the costs order concerning the second defendant; appeal against that order allowed; second defendant ordered to pay half of the plaintiff's costs below on the ordinary basis; no order as to costs in this Court.
Legal Topics
['costs' 'appeals' 'calderbank Offer' 'costs Follow the Event']
['civil Procedure'] ['costs' 'appeals' 'calderbank Offer' 'costs Follow the Event']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs / Determination of Costs After Judgment on Appeal

Legal Issues

  1. 1 ['What costs orders should be made for the proceedings below after the appeal succeeded against the second defendant but not the first defendant.' 'What costs order should be made for the proceedings in this Court.' 'Whether the Calderbank letter dated 6 December 2011 warranted a different costs order.']

Ratio Decidendi

Because the plaintiff succeeded against the second defendant but not the first defendant, and because the Calderbank offer was addressed to both defendants while the first defendant remained successful, the fair order was that the second defendant pay half of the plaintiff's costs of the proceedings below on the ordinary basis, avoiding a complex assessment differentiating costs incurred against each defendant. For the proceedings in this Court, the appeal against the first defendant was dismissed by consent only on the morning of the hearing and the appeal against the second defendant succeeded, so the fair result was no order as to costs.

Court Disposition

Plaintiff granted leave to appeal against the costs order concerning the second defendant; appeal against that order allowed; second defendant ordered to pay half of the plaintiff's costs below on the ordinary basis; no order as to costs in this Court.

Orders

  • ['The plaintiff have leave to appeal against the order as to costs insofar as it concerns the second defendant.' 'The appeal against that order be allowed.' "The order be vacated insofar as it concerns the second defendant and in lieu thereof the second defendant be ordered to pay half of the plaintiff's costs of...