Marshall v Prescott (No 2) [2013] NSWCA 292

Marshall v Prescott (No 2) [2013] NSWCA 292

Because the appeal outcome left each side successful on one of two equally weighted sets of privilege issues, the primary judge's costs order on privilege claims should be set aside and replaced with no order as to those costs, and there should otherwise be no order as to costs of the appeal on privilege. However, the appellants' unsuccessful application for leave to appeal against the primary judge's costs orders was a distinct matter, so the appellants had to pay the second, third and fourth respondents' costs of and incidental to that application.

Jurisdiction
Australia
Judgment Date
04 September 2013
Procedural Posture
Civil Appeal / Consequential Orders as to Costs After Appeal Allowed in Part
Outcome
Order (4) made by Bellew J on 29 August 2012 was set aside; there was no order as to the costs of the privilege claims or otherwise as to costs in the Court of Appeal, except that the appellants were ordered to pay the second, third and fourth respondents' costs of the application for leave to appeal against the...
Legal Topics
['review of Costs Order at First Instance' 'costs of Appeal Where Appeal Allowed in Part' 'application for Leave to Appeal Against Costs Orders' 'legal Professional Privilege' 'common Interest Privilege' 'subpoenaed Documents']
['civil Procedure' 'costs' 'privilege'] ['review of Costs Order at First Instance' 'costs of Appeal Where Appeal Allowed in Part' 'application for Leave to Appeal Against Costs Orders' 'legal Professional Privilege' 'common Interest Privilege' 'subpoenaed Documents']

Case Brief

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Procedural Posture

Civil Appeal / Consequential Orders as to Costs After Appeal Allowed in Part

Legal Issues

  1. 1 ['Whether the costs order made by the primary judge should be varied in light of the result on appeal.' 'What order should be made as to the costs in the Court of Appeal.' "Whether the appellants should pay the respondents' costs of the unsuccessful application for leave to appeal against costs orders made by the primary judge."]

Ratio Decidendi

Because the appeal outcome left each side successful on one of two equally weighted sets of privilege issues, the primary judge's costs order on privilege claims should be set aside and replaced with no order as to those costs, and there should otherwise be no order as to costs of the appeal on privilege. However, the appellants' unsuccessful application for leave to appeal against the primary judge's costs orders was a distinct matter, so the appellants had to pay the second, third and fourth respondents' costs of and incidental to that application.

Court Disposition

Order (4) made by Bellew J on 29 August 2012 was set aside; there was no order as to the costs of the privilege claims or otherwise as to costs in the Court of Appeal, except that the appellants were ordered to pay the second, third and fourth respondents' costs of the application for leave to appeal against the...

Orders

  • ['Set aside Order (4) made by Bellew J on 29 August 2012 and in lieu note that there is no order as to the costs of the claims for privilege determined by his Honour.' "Order that the costs of the second, third and fourth respondents of and incidental to the appellants' application for leave to appeal against costs...