ULV PTY LTD v SCOTT [NO 2] [1991] NSWCA 270

ULV PTY LTD v SCOTT [NO 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS, PRIESTLEY and JJA 23 November 1989, 1 March 1990, 11 July 1991 [1991] NSWCA 270

COSTS — Land and Environment Court — class 4 application general rule that party entitled to costs — appeal to Court of Appeal from orders — appeal allowed — provision for costs of proceedings at first instance — orders made by Court of Appeal but not entered — incorrect assumption that no order made for such costs at trial — held: The Court of Appeal's order should be varied to follow ordinary rule in respect of costs of trial.

Campbell v Minister for Environment and Planning, Land and Environment Court, unreported, 24 June 1988 (Cripps J) referred to. PRACTICE - Court of Appeal - orders - error - incorrect assumption - orders not entered - incorrect assumption as to disposal of costs at first instance - held: As orders not entered and as an incorrect assumption was demonstrated the Court could and should vary its earlier orders.

Kirby P I agree with Priestley JA. Samuels JA I agree with Priestley JA.

Priestley JA On 30 March last year, the court published reasons for allowing this appeal. My opinion was that the following orders should be made:

"1. Appeal allowed;

2. Declaration and order made by Bignold J, set aside;

3. In lieu thereof, order that the application by the First Respondents to the Land and Environment Court be dismissed;

4. The First Respondents to pay the costs of the Appellant and Second Respondent of the appeal; the Appellant's costs to be limited to those reasonably incurred to the date of the Appellant's decision not to brief counsel; liberty to apply to a single judge of appeal in chambers;

5. The First Respondents to have an indemnity certificate under the Suitors' Fund Act 1951;

6. The proceedings returned to the Land and Environment Court for such order as to the costs of the hearing at first instance as that Court may determine."