Galafassi v Kelly (No 2)

[2014] NSWCA 239

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Costs of appeal
4. › Mixed outcome
5. › Whether to depart from general rule that costs follow the event
6. › Global assessment of outcome preferred over issue-by-issue apportionment
7. › Civil Procedure Act 2005 (NSW), s 98
8. › Uniform Civil Procedure Rules 2005 (NSW), r 42.1
1. Practice and Procedure
2. › Costs
3. › Costs at first instance
4. › Whether costs order below should be varied on appeal
5. › Whether failure on discrete issue by overall successful party warrants departure from general rule
1. Practice and Procedure
2. › Costs
3. › Interest on costs
4. › Whether interest should be ordered under s 101(4) Civil Procedure Act 2005 (NSW)
5. › Whether positive case must be made in support of application
1. Practice and Procedure
2. › Restitution
3. › Overpayment under judgment subsequently set aside on appeal
4. › Entitlement to restitutionary interest at judgment rates

Quick Take

Where an appeal has a mixed outcome, the Court prefers a global assessment of the parties' respective successes rather than issue-by-issue apportionment of costs. A party seeking interest on costs under s 101(4) of the Civil Procedure Act 2005 (NSW) must make a positive case, and the mere fact of having to outlay costs is insufficient. The conflict between Illawarra Hotel and Drummond & Rosen on the threshold for interest on costs remains unresolved.