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.’

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