Creak v Ford Motor Company of Australia Ltd (No 2) [2023] NSWCA 323

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Creak v Ford Motor Company of Australia Ltd (No 2) [2023] NSWCA 323 Hearing dates: On the papers Decision date: 20 December 2023 Before: Gleeson JA at [1]; White JA at [2]; Kirk JA at [35] Decision: (1) In lieu of order 15 made in the court below on 10 March 2022, order that the second defendant pay 80% of the plaintiff's costs of the proceedings below. (2) Order that interest on the plaintiff's costs provided for by order (1) be payable at the prescribed rate as from the dates of payment by the plaintiff of each amount of costs until the date of payment by Mr Creak. (3) Order that the appellant pay 75% of the respondent's costs of the appeal. (4) Order that, subject to any contrary agreement of the parties, the interest on costs payable to Ford pursuant to order (2) and the interest on costs of the appeal payable to Ford pursuant to s 101(4) and (5) of the Civil Procedure Act be calculated according to the proportion that the costs and disbursements allowed on assessment bears to the actual costs and disbursements paid by Ford and multiplied by 80% and 75% respectively. Catchwords: COSTS – Party/Party – Appeals – Where neither party wholly successful on appeal – Where appellant enjoyed some success with respect to discrete aspect of claim – Where appellant asserts there should be no order as to costs – Where respondent substantively successful on balance of contested issues – No issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Cases Cited: Creak v Ford Motor Company of Australia Ltd [2023] NSWCA 217 Drummond v Rosen (No 2) [2009] NSWCA 331 Lahoud v Lahoud [2006] NSWSC 126 Category: Costs Parties: Ian David Charles Creak (Appellant) Ford Motor Company of Australia Ltd (Respondent) Representation: Counsel: T Brennan SC with M Darian-Smith (Appellant) C R C Newlinds SC with R Glasson (Respondent)