The Nominal Defendant v Ross (No 2) [2014] NSWCA 370

The Nominal Defendant v Ross (No 2) [2014] NSWCA 370

Because the appellant succeeded only on the contributory negligence issue, failed on the negligence and due inquiry and search issues, those unsuccessful issues were significant and largely severable, and the successful issue did not occupy a significant part of the hearing or written submissions, but the appeal did achieve a reduction in damages, the proper costs order was a global assessment requiring the respondent to pay 30 percent of the appellant's costs of the appeal.

Jurisdiction
Australia
Judgment Date
31 October 2014
Procedural Posture
Costs of Appeal / On the Papers After Principal Appeal Judgment
Outcome
Further costs orders made in addition to those in The Nominal Defendant v Ross [2014] NSWCA 212.
Legal Topics
['costs of Appeal' 'costs Follow the Event' 'mixed Outcome on Appeal' 'apportionment of Costs' "suitors' Fund Certificate"]
['civil Procedure' 'costs'] ['costs of Appeal' 'costs Follow the Event' 'mixed Outcome on Appeal' 'apportionment of Costs' "suitors' Fund Certificate"]

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs of Appeal / On the Papers After Principal Appeal Judgment

Legal Issues

  1. 1 ['What costs order should be made following an appeal in which the appellant succeeded only on contributory negligence but failed on negligence and due inquiry and search.' 'Whether the outcome justified departing from the general rule that costs follow the event.' 'Whether costs should be apportioned by issue or assessed globally.']

Ratio Decidendi

Because the appellant succeeded only on the contributory negligence issue, failed on the negligence and due inquiry and search issues, those unsuccessful issues were significant and largely severable, and the successful issue did not occupy a significant part of the hearing or written submissions, but the appeal did achieve a reduction in damages, the proper costs order was a global assessment requiring the respondent to pay 30 percent of the appellant's costs of the appeal.

Court Disposition

Further costs orders made in addition to those in The Nominal Defendant v Ross [2014] NSWCA 212.

Orders

  • ["The respondent is to pay 30 percent of the appellant's costs of the appeal." "That the respondent have a certificate under s 6 of the Suitors' Fund Act 1951 if otherwise qualified."]