Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd (No 2) [2024] NSWCA 214

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd (No 2) [2024] NSWCA 214 Hearing dates: On the papers Decision date: 05 September 2024 Before: Ward P; Leeming JA; Mitchelmore JA Decision: In 2023/00443714 (Matthew's appeal), order that: 1. Set aside order 4 made by this Court on 6 August 2024. 2. Vary order 2 made by the District Court on 10 November 2023 by replacing $73,259 (in the order as varied by this Court on 6 August 2024) with $122,742.15, with the result that in proceeding 2020/308483 brought by Matthew Carbone against Fowler Homes Pty Ltd, the order taken to have been made on 10 November 2023 is: That there be judgment and verdict for the plaintiff against the defendant in the sum of $122,742.15. 3. Pursuant to s 101 of the Civil Procedure Act, order that interest is not payable on the judgment debt in order 2 above if it is paid within 28 days of today, however to the extent that the judgment debt remains outstanding after 28 days from today, it will attract interest pursuant to s 101 accruing from 10 November 2023. 4. Set aside order 3 made by the District Court on 10 November 2023. 5. No order as to the costs of the appeal, with the intent that the parties bear their own costs of the appeal. 6. Order that other than for the costs of and incidental to the Reference that took place pursuant to the orders made by the District Court on 24 March 2023, Fowler Homes is to pay Matthew Carbone's costs in the District Court. In 2023/00443762 (Joe's appeal), order that the notice of motion filed on 20 August 2024 be dismissed. Catchwords: COSTS – re-exercise of costs discretion after partially successful appeal Legislation Cited: Civil Procedure Act 2005 (NSW), ss 100, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1 Cases Cited: Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd [2024] NSWCA 192 Category: Costs Parties: In 2023/00443714 Matthew Carbone (Appellant) Fowler Homes Pty Ltd (Respondent)