McCasker v OMAD (NT) Pty Ltd (No 4)

[2023] NTSC 89

Supreme Court of the Northern Territory

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Discretion of court
4. › General rule that costs follow the event
5. › Departure from general rule
6. › Differential costs order
7. › Where case involved clearly discrete issues
8. › Whether counting parties' success on number of issues appropriate approach
9. › Whether costs discretion to be exercised on basis of time taken on issues on which each party successful
1. Practice and Procedure
2. › Costs
3. › Discretion of court
4. › Final flow of money test
5. › Whether test applies outside commercial arbitration
6. › Where case involved declaratory and monetary relief
1. Practice and Procedure
2. › Costs
3. › Certification for two counsel
4. › Whether retainer of more than one counsel warranted
5. › Supreme Court Rules 1987 (NT), r 63.72(9)(b)

Quick Take

The 'final flow of money test' for determining the successful party in costs disputes does not apply outside commercial arbitration. Where a case involves clearly discrete issues and neither party has acted unreasonably, the costs discretion should be exercised by reference to the proportion of time taken on the issues on which each party succeeded, not by counting the number of issues won.