In the case the subject of the last two posts, Justice Black summarised the law about just how successful a claimant need be before the rule that costs follows the event will presumptively kick in. The reasons in Barescape Pty Limited as trustee for the V’s Family Trust v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust (No 12) [2012] NSWSC 1591 say at [35]: Continue reading “How much success warrants costs? Nominal damages enough?”
Entitlement to costs of claimants enjoying mixed success in their own claim
In the case the subject of the last post, Justice Black summarised the law about when the winner may be deprived of the costs associated with issues which it contested and lost: Barescape Pty Limited as trustee for the V’s Family Trust v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust (No 12) [2012] NSWSC 1591: Continue reading “Entitlement to costs of claimants enjoying mixed success in their own claim”
Costs where different winners on claim and counterclaim
Barescape Pty Limited as trustee for the V’s Family Trust v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust (No 12) [2012] NSWSC 1591 is a substantial judgment in relation to costs in a complex matter. At [6] Justice Black summarised the law where a claimant is successful but unsuccessful in a counterclaim, or vice-versa. Are the costs to be awarded separately or are the costs of the whole proceeding to be aggregated so that one order is made in respect of the lot?
‘Where a claim and cross-claim raise essentially different issues and a plaintiff succeeds in the claim and the defendant on the cross-claim, there should generally be separate judgments on the claim and the cross-claim with the plaintiff having the costs of the claim and the defendant having the costs of the cross-claim, although a special order may be made if the issues are interlocked: Chell Engineering Ltd v Unit Tool & Engineering Co Ltd [1950] 1 All ER 378; Godden v Alford [1960] WAR 235 at 236-237. It appears that, in Visible Results Properties Inc v Sushi Train (Australia) Pty Limited [2007] FCA 514, Allsop J adopted the former approach in ordering that an unsuccessful applicant/cross-respondent (“Visible Results”) pay the costs of the respondent/cross-claimant (“Sushi Train”) of the application and that Sushi Train pay Visible Results’ costs of the Cross-Claim. However, that approach was there advanced by one party and not opposed by the other. On the other hand, the result of an appeal and cross-appeal were aggregated where there was an overlap between them in Polwood Pty Ltd v Foxworth (No 2) [2008] FCAFC 168 at [12]-[13], where the Full Court of the Federal Court pointed to the undesirability of potentially separate taxation of the costs of an appeal and cross-appeal giving rise to disputes as to whether a particular attendance was a cost in one or the other and ordered payment of a percentage of costs of the appeal and cross-appeal.’