Furber v. Stacey & Anor. [2005] NSWCA 242

New South Wales Court of Appeal

CITATION: Furber v. Stacey & Anor. [2005] NSWCA 242

HEARING DATE(S): 4 May 2005

JUDGMENT DATE: 25 July 2005

JUDGMENT OF: Hodgson JA at 1; Basten JA at 56; Einstein J at 88

DECISION: 1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed to the extent of substituting, for the costs orders made by the primary judge (except that relating to reserved costs) the following order: Mrs. Furber to pay Mr. Stacey's costs of the proceedings and one-quarter of the Canine Council's costs of the cross-claim, these costs in both cases to include the costs of the costs argument before the primary judge and to be on an indemnity basis from 10 November 2003. 3. Appeal otherwise dismissed. 4. The Canine Council to pay Mrs. Furber's costs of the application and appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.

CATCHWORDS: PROCEDURE - COSTS - Costs of cross-claim - Cross-claimant fails because plaintiff's claim against cross-claimants fails - Whether plaintiff should pay cross-defendant's costs.

LEGISLATION CITED: District Court Rules Part 21 rule 8, Part 39A rule 9

Allman v. Daly No.2 [1959] VR 614 Altamura v Victorian Railways Commissioners (1974) VR 33 Earnshaw v Loy (No 2) [1959] VR 52 Elgindata Ltd, In re [No. 2] [1992] 1 WLR 1207 Fennel v Supervision and Engineering Services (1988) 47 SASR 6 GEC Marconi Systems Pty. Ltd. v. BHP Information Technology Pty. Ltd. [2003] FCA 688, 201 ALR 55 Gladstone Park Shopping Centre Pty. Ltd. v. Wills (1984) 6 FCR 496, 59 ALR 109, Gold Coast Bakeries (Qld.) Pty. Ltd. v. Heat Control Pty. Ltd. [1992] 1 QdR 162 Gould v Vaggelas (1985) 157 CLR 215 Johnson Tyne Foundry v Maffra Corporation (1948) 77 CLR 544 CASES CITED: Johnson v. Ribbins [1977] I WLR 1548 Lackersteen v Jones (No.2) (1988) 93 FLR 442 Latoudis v Casey (1990) 170 CLR 534 Leaver v. Golsby [1964-5] NSWR 1833 Lombard Insurance Co. (Australia) Ltd. v. Pastro (1994) 175 LSJS 448 Oshlack v Richmond River Council (1998) 193 CLR 72 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Salmon, In Re (1889) 42 Ch.D. 351 Statham v. Shephard (No.2) (1974) 23 FLR 244