GLANDON PTY LTD v STRATA CONSOLIDATED PTY LTD [1988] NSWCA 50

GLANDON PTY LTD v STRATA CONSOLIDATED PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 29 December 1988, 29 December 1988

[1988] NSWCA 50

DECLARATORY ORDERS — when made — for removaL of ambiguity of earlier order — to avoid possibilitY of contempt of earlier order of Court of Appeal by reason of a misconstruction of it — held: Declaration clarifying the rights of the parties under the earlier order should be made. Cawood v Green & Anor, unreported, Court of Appeal, 26 June 1974 applied. PRACTICE — costs — proper order for — party properly brings proceedings — could have disposed of by consent order lately offered — held: Costs of motion to be costs in the proceedings. Supreme Court Act 1970, s46.

Kirby P It is often the case that the most hotly disputed issue in proceedings before the courts is the matter of costs. So it has ultimately proved in these proceedings. They come before me, exercising the powers of the Court of Appeal, pursuant to s46 of the Supreme Court Act 1970. The matter comes before the Court having been listed on 23 December 1988. It has been heard in vacation.

On the substantive matter which brings the matter to the Court there is now no relevant disagreement between the parties. At least, it is agreed that, for the removal of doubt, the Court may in the circumstances make a declaration, effectively in the terms set out in para2 of the Notice of Motion filed by the claimants. Certain words will be added, without objection, to protect the position of the first opponent.

The first opponent says that the bringing of the proceedings to the Court, and particularly in the circumstances which will be described, was unnecessary. It says that the matter of doubt which has caused the claimants to move is unpersuasive. In any case, it argues, having regard to an earlier signification of agreement, that the matter could and should have been disposed of by a consent order without the necessity of the hearing before the Court today.