Riman v Smith [2023] NSWCATAP 205

Riman v Smith [2023] NSWCATAP 205

The appellant’s withdrawal of the appeal after failing to prosecute it further is considered a capitulation; given the respondent’s consent to withdrawal was conditional on a costs application and the appeal involved an amount exceeding $30,000, the ordinary rule as to costs applies and the appellant is to pay the respondent’s costs of the appeal.

Jurisdiction
Australia
Judgment Date
28 July 2023
Procedural Posture
Appeal / Costs Determination Following Withdrawal of Appeal
Outcome
Appellant is ordered to pay the Respondent’s costs of the appeal.
Legal Topics
['costs' 'withdrawal of Appeal' 'capitulation' 'discontinuance' 'consumer and Commercial Division']
['civil Procedure'] ['costs' 'withdrawal of Appeal' 'capitulation' 'discontinuance' 'consumer and Commercial Division']

Case Brief

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Procedural Posture

Appeal / Costs Determination Following Withdrawal of Appeal

Legal Issues

  1. 1 ['Whether costs should be awarded to the respondent where appeal was withdrawn without explanation and consent to discontinuance was conditional on seeking costs.' 'Applicability of rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) to costs orders in the Tribunal and on appeal.']

Ratio Decidendi

The appellant’s withdrawal of the appeal after failing to prosecute it further is considered a capitulation; given the respondent’s consent to withdrawal was conditional on a costs application and the appeal involved an amount exceeding $30,000, the ordinary rule as to costs applies and the appellant is to pay the respondent’s costs of the appeal.

Court Disposition

Appellant is ordered to pay the Respondent’s costs of the appeal.

Orders

  • ["A hearing of the Respondent's application for costs of the appeal is dispensed with." "The Appellant is to pay the Respondent's costs of the appeal."]