Twigg & Anor. v. Kung & Anor. [2003] NSWCA 42

New South Wales Court of Appeal

CITATION : Twigg & Anor. v. Kung & Anor. [2003] NSWCA 42 HEARING DATE(S) : In Chambers JUDGMENT DATE : 7 March 2003

JUDGMENT OF : Stein JA at 1; Hodgson JA at 2; Foster AJA at 25 DECISION : 1. Set aside costs order made on 11 July 2002. 2. Order the appellants to pay Kung's costs of the appellants' appeal, including those ordered to be paid by Registrar Irwin on 24 February 2002, and also McGlynn's costs up to 11 June 2002. 3. Order Kung to pay one half of McGlynn's costs incurred in relation to the appeal after 11 June 2002.

CATCHWORDS : PRACTICE - APPEAL - COSTS - Plaintiff sues two defendants, and first defendant cross-claims against second defendant seeking an indemnity - Plaintiff's claim dismissed, and cross-claim dismissed for that reason - Plaintiff seeks leave to appeal as against first defendant only, and first defendant seeks leave to cross-appeal against dismissal of its cross-claim - Leave to appeal granted and leave to cross-appeal refused - Whether second defendant "affected by the relief sought by a notice of appeal" or "interested in maintaining the decision under appeal" - Who should pay costs arising from joinder of second defendant on application of first defendant. LEGISLATION CITED : Supreme Court Act 2.75A(10) Supreme Court Rules Pt.51, rr.9, 22 and 23 Castellan v. Electric Power Transmission Pty. Ltd. (1967) 69 SR(NSW) 159 CASES CITED : Kelly v. Newcastle Protective Coating [1973] 2 NSWLR 45 Shirt v. Wyong Shire Council [1978] 1 NSWLR Peter Twigg & Mark Twigg (trading as Adrian Twigg & Co.) - appellant PARTIES : Patrick Kam Chiu Kung - 1st respondent Ross Elder McGlynn & Stephen Michael Hahn (trading as McGlynn & Partners) - 2nd respondent FILE NUMBER(S) : CA 40647/00 COUNSEL : The parties consented to the motions being dealt with by the Bench in Chambers without oral submissions. SOLICITORS : Adrian Twigg & Co. for appellant Phillip Yip & Associates for respondents