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Decisions of the Superior Courts of New South Wales, 1788-1899

Eales v. Lang [1847] NSWSupC 24

costs in appeals

Supreme Court of New South Wales

Stephen C.J., December 1847

Source: Sydney Morning Herald, 7 December 1847, in Supreme Court Collection, Vol. 2, p. 33


His Honor the CHIEF JUSTICE delivered the judgment of the Court in this case, on the question of costs, which had been reserved, as follows:---

In this case, which was heard on Thursday last, the verdict was for the defendant on four issues, and the plaintiff moved for a new trial on all. We were of opinion, that the verdict was wrong on two of them, but that we ought not to disturb the verdict as to the other two. On this the defendant consented to the verdict being entered for the plaintiff, on the two former; and the question then arose as to the costs---the party moving having here partially succeeded. We took time to look into our former decisions on the question of costs, and we are of opinion that the costs must be paid by the plaintiff.

The two cases which come nearest to the particular point, are those of Gore v. Edgar, 5th February, 1846; and M'Dermott v. Green, 28 th July last; of which the following is a note:--- "Gore v. Edgar. --- Assumpsit for money paid and lent, and for goods sold, and on an undertaking to indemnify. Verdict for the plaintiff on all the counts, and damages assessed at £261. The defendant asked for a new trial generally. The Court ordered a new trial as to the money counts only; and directed the damages to be reduced to £100, should the verdict eventually be for the defendant on those counts. Mr. Foster, for the plaintiff, submitted, that the defendant ought not to have the costs of the motion or order, as he had only partially succeeded; and, by asking for too much, had led the plaintiff to oppose. The Court were of this opinion; and directed, as to the costs in question, that each party should pay his own --- although the costs of the new trial, (and of the first trial, so far as the money counts were concerned,) were to abide the event of the new trial." --- "M'Dermott v. Green. --- In this case, the verdict was for the defendant on all the issues; and the motion was for a new trial on all. The verdict was clearly wrong on three of the issues --- but these the defendant abandoned, on the argument, and consented that the verdict on them should be entered for the plaintiff. This being done, the Court refused a new trial; and the plaintiff (he having asked too much) was ordered to pay the costs."

Published by the Division of Law, Macquarie University