AZAR; AZAR v LONDON ENTERPRISES PTY LTD (T/AS PAPPA GIUSEPPI'S FROZEN FOOD); LONDON ENTERPRISE PTY LTD [1991] NSWCA 3

AZAR v LONDON ENTERPRISES PTY LTD (T/as PAPPA GIUSEPPI'S FROZEN FOOD; AZAR v LONDON ENTERPRISES PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 15 October 1991

[1991] NSWCA 3

Clarke JA. This matter was before the Court again today for consideration of the appropriate cost order. The reason why cost orders were not made when the motion was disposed of was that there was initially an application by the claimant/respondent for an order that Messrs Anthony Malouf and Co, the solicitors for the appellant in at least the early stages of the appeal, pay the respondent's costs of its appearance of 16 September 1991. The position became complicated when counsel for the appellant sought a much wider cost order against Messrs Anthony Malouf, but was forced to concede that no notice had been given to that firm of the application for a wider order. The matter was then adjourned until today.

Due notice was given and Mr Lanigan, of counsel, appeared today on behalf of Messrs Anthony Malouf and Co, to oppose the making of any costs order against his client. In support of that opposition, counsel sought and was grantedleave to file in court an affidavit of Gerard Francis Malouf sworn 15 October 1991. In that affidavit Mr Malouf recounted some of the details of the rather sorry history of this case and proffered an explanation why no one had been at court on 16 September when the matter was first before Mr Justice Priestley. Once the affidavit was read, counsel for the appellant withdrew the application for the wider costs order which he had foreshadowed on the earlier occasion. As a result, Iam concerned only to decide whether it is appropriate that the appellant should pay the claimant/respondent's costs of the notice of motion or whether she should pay those costs subject to another order that Messrs Anthony Malouf and Co pay the costs of 16 September 1991.