Ossen Pty Ltd v K&S Developments Pty Ltd

Consideration

1. The Court has a discretion to determine by whom, to whom and to what extent costs are to be paid although in the exercise of the discretion costs will ordinarily follow the event unless it appears to the Court that some other order should be made: see Civil Procedure Act 2005 (NSW), s 98(1); Uniform Civil Procedure Rules 2004 (NSW), r 42.1.
2. The Court of Appeal summarised the relevant principles in Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 as follows: [6] Section 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs. Under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) the general rule is that the Court is to order that costs follow the event. The "event" may be characterised in more than one way. Generally the "event" refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. [7] The relevant principals for the determination of costs on an issue-by-issue basis were stated in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] per Beazley, Ipp and Basten JJA: Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: SabahYazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick (No 2) [2006] NSWCA 374 at [27]. Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed). A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]. Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296, citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.
3. The proposition stated in James v Surf Road at [36] on which Mrs Clarke relies is summarised in Ryde Developments at [6] as extracted above.
4. It is also relevant to note the following observation of Hodgson JA (with whom Mason P agreed) in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]: In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach.
5. At the hearing, there was no dispute that Mrs Clarke was entitled to contribution in respect of Loans B and C and the real issue was her claim in respect of Loan A. Ossen succeeded in relation to the question whether contribution was available in respect of Loan A.
6. The dispute in relation to interest on Loans B and C was, as Ossen submitted, a pleading point. The only reason why Ossen contended that there was no right to contribution in respect of interest on Loans B and C was that the order sought in prayer 4 of the cross-claim extended only to the amounts of principal paid by her in respect of Loans B and C. I concluded in the Judgment that this overlooked prayer 3 of the cross-claim and that accordingly the appropriate order was to allow contribution in respect of both principal and interest on Loans B and C.
7. It is clear that Ossen is, in an overall sense, the successful party on the cross-claim. In my view, it is not appropriate to deprive Ossen, as the successful party, of a portion of its costs by reason of Mrs Clarke's success on the claim for contribution for interest in respect of Loans B and C for two reasons. First, that matter arose essentially because of the narrowness of the order sought in prayer 4 of the cross-claim which led to the argument that the claim for contribution was in respect of only principal on Loans A, B and C. As a matter of substance, the issue arose due to a deficiency in the drafting of the cross-claim which was a problem of Mrs Clarke's own making. Second, as Ossen submitted, the issue regarding the contribution for interest did not take up a significant part of the hearing, either by way of evidence or argument, indeed quite the contrary.
8. Approaching the matter on the basis that costs should be paid in a way that is fair having regard to what the Court considers to be the responsibility of each party for the incurring of costs, Ossen should receive all its costs of and incidental to the cross-claim.
9. For these reasons, the Court will order that Mrs Clarke should pay Ossen's costs of and incidental to the cross-claim on the ordinary basis, as agreed or assessed.

Amendments 17 June 2024 - [8] - change "in" to "see". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2024