Cotie v Cox [2006] NSWSC 859

Cotie v Cox [2006] NSWSC 859

Although the trial judge invited costs submissions and none were made on cross-claims, no actual order was made, and the omission does not render the Court functus officio. The first defendant, having succeeded against the second defendant on the cross-claim, is the successful party for costs purposes and is entitled to costs on the cross-claims. However, the first defendant must pay the second defendant's costs of the Notice of Motion as a result of how the costs claim was pursued post-judgment.

Parties
Plaintiff: Spencer Cotie by his Tutor Mike Cotie; First Defendant/first Cross Claimant: Wendy Louise Cox; Second Defendant/first Cross Defendant: Prince of Wales Private Hospital
Jurisdiction
Australia
Judgment Date
23 August 2006
Procedural Posture
Civil / Post Judgment Costs Determination
Outcome
Costs orders made in favour of the successful cross-claimant and on the Notice of Motion.
Legal Topics
Costs, Cross Claims, Apportionment of Liability, Professional Negligence
Civil Procedure Costs Cross Claims Apportionment of Liability Professional Negligence

Case Brief

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Parties

Spencer Cotie by his Tutor Mike Cotie

Plaintiff

Wendy Louise Cox

First Defendant/first Cross Claimant

Prince of Wales Private Hospital

Second Defendant/first Cross Defendant

Procedural Posture

Civil / Post Judgment Costs Determination

Legal Issues

  1. 1 Whether costs should follow the event in cross-claims where both defendants are partly liable
  2. 2 Whether the court is functus officio when no costs order was made after judgment
  3. 3 Appropriate exercise of discretion regarding costs post-judgment

Ratio Decidendi

Although the trial judge invited costs submissions and none were made on cross-claims, no actual order was made, and the omission does not render the Court functus officio. The first defendant, having succeeded against the second defendant on the cross-claim, is the successful party for costs purposes and is entitled to costs on the cross-claims. However, the first defendant must pay the second defendant's costs of the Notice of Motion as a result of how the costs claim was pursued post-judgment.

Court Disposition

Costs orders made in favour of the successful cross-claimant and on the Notice of Motion.

Orders

  • The Second Defendant/First Cross-Defendant (the hospital) pay the First Defendant/First Cross-Claimant's costs on the First and Second Cross-Claims in proceedings 20435/01, 20433/01 and 20434/01.
  • The First Defendant (Dr Cox) pay the Second Defendant's costs on the Notice of Motion.