Sze Tu v Lowe (No 2)

[2015] NSWCA 91

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Costs follow the event
4. › Multiple issues and more than one event
5. › Whether successful party should be deprived of part of costs
6. › Distinction between successful defendants and successful plaintiffs
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. › Bullock order
4. › Multiple defendants
5. › Whether conduct of unsuccessful defendant made it fair to impose liability for successful defendant's costs
6. › Whether allocation of responsibility between defendants was uncertain
7. › Whether claims against successful defendants were alternatives to claims against unsuccessful defendant
1. Practice and Procedure
2. › Costs
3. › Costs against estate
4. › Inactive party at first instance
5. › Condition limiting source of payment
6. › Whether costs order should be limited to deceased's share of partnership assets
1. Practice and Procedure
2. › Costs
3. › Costs of appeal
4. › Appellants not moving party
5. › Whether Bullock order available where successful party on appeal was respondent not appellant

Quick Take

A Bullock order will not be made on appeal against an unsuccessful defendant where it was the successful appellants (not the plaintiffs) who joined the unsuccessful defendant as a respondent, and the unsuccessful defendant did not engage in conduct causing the joinder. The analogy between adversarial proceedings and probate litigation (where costs are paid from the fund) is inapt where the proceedings are adversarial in form and substance. Where a costs order against an estate would burden passive parties with an interest in the estate, the court may impose a condition limiting the source from which costs may be satisfied.