Smith v Madden [1946] HCA 19

Smith v Madden [1946] HCA 19

The costs of employing two counsel were reasonable and proper given the complexity and substance of the case; on taxation of costs where claim and counterclaim are successful to opposing parties, costs of the claim and counterclaim must be treated separately according to settled principle, allowing only additional costs caused by the counterclaim, with no apportionment except for truly mixed items.

Parties
Applicants; Plaintiffs: Smith and Another (Smith Brothers); Respondents; Defendants: Madden and Another (Madden Brothers)
Jurisdiction
Australia
Procedural Posture
Application to Review Taxation of Costs / Post Judgment Review (taxation of Costs After Trial in Original Jurisdiction)
Outcome
Objections of the plaintiffs to the taxation of both the plaintiffs' and the defendants' bills of costs allowed. Both bills referred back to taxing officer to review certificates. Defendants to pay the costs of the application, fixed at ten guineas.
Legal Topics
Review of Taxation of Costs, Original Jurisdiction, Employment of Two Counsel, Apportionment and Division of Costs, Counterclaim Procedure
Civil Procedure Costs Review of Taxation of Costs Original Jurisdiction Employment of Two Counsel Apportionment and Division of Costs Counterclaim Procedure

Case Brief

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Parties

Smith and Another (Smith Brothers)

Applicants; Plaintiffs

Madden and Another (Madden Brothers)

Respondents; Defendants

Procedural Posture

Application to Review Taxation of Costs / Post Judgment Review (taxation of Costs After Trial in Original Jurisdiction)

Legal Issues

  1. 1 Whether the taxing officer was correct in disallowing the costs of a second counsel in the plaintiffs' bill.
  2. 2 Whether the taxing officer correctly applied the principle governing the taxation of costs on counterclaims where both claim and counterclaim are successful but to different parties.

Ratio Decidendi

The costs of employing two counsel were reasonable and proper given the complexity and substance of the case; on taxation of costs where claim and counterclaim are successful to opposing parties, costs of the claim and counterclaim must be treated separately according to settled principle, allowing only additional costs caused by the counterclaim, with no apportionment except for truly mixed items.

Court Disposition

Objections of the plaintiffs to the taxation of both the plaintiffs' and the defendants' bills of costs allowed. Both bills referred back to taxing officer to review certificates. Defendants to pay the costs of the application, fixed at ten guineas.

Orders

  • Objections of the plaintiffs to taxation of the plaintiffs' bill of costs allowed and bill referred back to taxing officer to review the certificate on footing that employment of two counsel was reasonable and proper and costs thereof shall be allowed.
  • Objections of the plaintiffs to taxation of the defendants' bill of costs allowed and bill referred back to taxing officer to review the certificate.