Dix Gardner Pty Ltd v The Owners – Strata Plan 82053 (No 2) [2018] NSWSC 92

Dix Gardner Pty Ltd v The Owners – Strata Plan 82053 (No 2) [2018] NSWSC 92

Because the apportionment and proportionate liability issues remained for the Local Court on remittal, the Court could not assess whether the defendant's offers had been bettered or make indemnity costs orders based on a guessed outcome. Both parties had contributed to the costs position: the appeal succeeded only because the Magistrate failed to decide apportionment and proportionate liability, while the defendant's cross appeal raised damages, pleading and interest issues and was dismissed. Neither party in substance succeeded in its appeal, so the ordinary costs-follow-the-event approach applied to each proceeding: the plaintiffs were unsuccessful on the appeal for costs purposes and...

Jurisdiction
Australia
Judgment Date
13 February 2018
Procedural Posture
Costs on Appeal and Cross Appeal / Determined by Way of Written Submissions After Appeal Judgment and Remittal to the Local Court
Outcome
The plaintiff was ordered to pay the defendant's costs of the appeal on an ordinary basis; the defendant was ordered to pay the plaintiffs' costs of the cross appeal on an ordinary basis; each party was ordered to pay its own costs of submissions on costs.
Legal Topics
['costs Follow the Event' 'ordinary Basis Costs' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'discrete Issues on Appeal' 'apportionment' 'proportionate Liability']
['costs' 'civil Procedure'] ['costs Follow the Event' 'ordinary Basis Costs' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'discrete Issues on Appeal' 'apportionment' 'proportionate Liability']

Case Brief

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Procedural Posture

Costs on Appeal and Cross Appeal / Determined by Way of Written Submissions After Appeal Judgment and Remittal to the Local Court

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the defendant's costs of the appeal on an indemnity basis from 19 August 2016 or 13 September 2016 by reason of offers made by the defendant." 'Whether costs should be apportioned by reference to discrete issues on which the plaintiffs failed in the appeal.' "Whether the defendant should pay the plaintiffs' costs of the cross appeal." 'Whether the Court could take account of the likely apportionment outcome after remittal to the Local Court.']

Ratio Decidendi

Because the apportionment and proportionate liability issues remained for the Local Court on remittal, the Court could not assess whether the defendant's offers had been bettered or make indemnity costs orders based on a guessed outcome. Both parties had contributed to the costs position: the appeal succeeded only because the Magistrate failed to decide apportionment and proportionate liability, while the defendant's cross appeal raised damages, pleading and interest issues and was dismissed. Neither party in substance succeeded in its appeal, so the ordinary costs-follow-the-event approach applied to each proceeding: the plaintiffs were unsuccessful on the appeal for costs purposes and...

Court Disposition

The plaintiff was ordered to pay the defendant's costs of the appeal on an ordinary basis; the defendant was ordered to pay the plaintiffs' costs of the cross appeal on an ordinary basis; each party was ordered to pay its own costs of submissions on costs.

Orders

  • ["The plaintiff is to pay the defendant's costs of the appeal on an ordinary basis and the defendant is to pay the plaintiffs' costs of the cross appeal on an ordinary basis." 'Each party is to pay their own costs in relation to their submissions on costs.']