Floruit Holdings Pty Ltd & Anor v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 411

Floruit Holdings Pty Ltd & Anor v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 411

The appellants were successful on the separate question and on appeal; therefore, they are entitled to their costs for both the appeal and the hearing of the separate question in the District Court. The fact that the main proceedings are ongoing or may ultimately be unsuccessful for the appellants does not disentitle them to costs of an issue on which they succeeded.

Jurisdiction
Australia
Judgment Date
16 December 2009
Procedural Posture
Appeal / Determination of Costs After Appeal Allowed
Outcome
Orders made for costs: respondent to pay appellants' costs of and incidental to the appeal and of the hearing of the separate question in the District Court; costs order from District Court set aside; certificate under the Suitors' Fund Act 1951 (NSW) for the respondent subject to satisfaction of s 6(7).
Legal Topics
['costs' 'orders on Appeal' 'separate Question Determination']
['civil Procedure'] ['costs' 'orders on Appeal' 'separate Question Determination']

Case Brief

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Procedural Posture

Appeal / Determination of Costs After Appeal Allowed

Legal Issues

  1. 1 ['Whether appellants are entitled to costs of the determination of the separate question in the District Court' 'Appropriate order for costs of the appeal']

Ratio Decidendi

The appellants were successful on the separate question and on appeal; therefore, they are entitled to their costs for both the appeal and the hearing of the separate question in the District Court. The fact that the main proceedings are ongoing or may ultimately be unsuccessful for the appellants does not disentitle them to costs of an issue on which they succeeded.

Court Disposition

Orders made for costs: respondent to pay appellants' costs of and incidental to the appeal and of the hearing of the separate question in the District Court; costs order from District Court set aside; certificate under the Suitors' Fund Act 1951 (NSW) for the respondent subject to satisfaction of s 6(7).

Orders

  • ["The respondent is to pay the appellants' costs of and incidental to the appeal." 'Set aside the costs order of the hearing of the separate question made by Gibb DCJ.' "The respondent is to pay the appellants' costs of and incidental to the hearing of the separate question in the District Court." "The respondent...