BARBARO v GAMBACORTA GAMBACORTA v CALABRIA [1988] NSWCA 12

BARBARO v GAMBACORTA; GAMBACORTA v CALABRIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MCHUGH and CLARKE JJA 6 May 1988

[1988] NSWCA 12

Priestley, McHugh and Clarke JJA On 26 November 1987 the court indicated that it proposed to dismiss these appeals. Priestley JA ended his reasons (with which McHugh and Clarke JJA agreed) by saying:

"No argument was put to the court on costs, presumably because it was expected that costs would follow the event, as in my opinion they should. Although initially informally, Mr Calabria was present when the case was opened in this court because of notification by Mr Barbaro. The whole of the court's time was taken up with the Unsuccessful arguments of Mr Barbaro. On the footing that this court has the same power under s76 of the Supreme Court Act 1970 as the English High Court and Court of Appeal have under s51(1) of their Supreme Court Act 1981 (see Aiden Shipping Ltd v Interbulk Ltd [1986] AC 967) I would propose that both appeals be dismissed with costs and that in Mr Barbaro's appeal Mr Gambacorta's costs should include any costs paid by him to Mr Calabria in Mr Gambacorta's appeal against Mr Calabria. In case Mr Barbaro should wish to make submissions on the power of the court to make such orders I suggest that the court not today formally pronounce any orders but grant leave to Mr Barbaro to file written submissions with the Registrar within seven days from today, should he be so advised. The appeals can be finally disposed of thereafter."

Thereafter written submissions on costs were filed for Mr Barbaro, which were answered by his opponents. Mr Barbaro's submissions did not deal with the power of the court which was the particular subject upon which submissions were sought. In these circumstances it seems appropriate to assume that the court's power to make the order suggested is not disputed.