RAYBOS AUSTRALIA Pty Ltd v TECTRAN CORPORATION Pty Ltd [1993] NSWCA 227

RAYBOS AUSTRALIA Pty Ltd vy TECTRAN CORPORATION Pty Ltd SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and Hope JJ 24 November 1992, 8 April 1993

[1993] NSWCA 227

COSTS — summons for leave to appeal and appeal — complex proceedings — appeal succeeds upon one of three grounds only — provision to be made in respect of costs of appeal and proceedings at first instance — held:

(1) The opponents/respondents should pay 75 per cent of the claimants'/appellants' costs of the appeal;

(2) The costs at first instance should be the claimants'/appellants' costs in the further hearing of those proceedings;

(3) No costs to be paid in respect of preparing and filing written submissions filed without leave of the Court after the end of oral argument.

Kirby P, Priestley and Hope JJ The court published reasons and made orders in these matters on 24 November 1992, except as to costs.

The court directed that submissions on costs be in writing, to be filed no later than 4 pm on the fourteenth day from the publication of the court's reasons that is, 8 December; any reply to be filed no later than 4 pm on the twenty-first day from the publication of the reasons, that is, 15 December. The court also ordered no submissions be received after the stipulated times.

In the application for leave the claimants had been Raybos and Dr Rajski. They became the appellants in the appeal. Mr Bainton QC and Mr Bozic appeared for the first to eighth, the twelfth and the thirteenth opponents in the application for leave. These became the first to eighth, twelfth and thirteenth respondents in the appeal. Mr Heydon QC, Mr Nicholas and Mr Powell appeared for the ninth, tenth and eleventh opponents in the application for leave and the ninth, tenth and eleventh respondents in the appeal.

Pursuant to the court's directions concerning the submissions on costs, written submissions from Raybos, Dr Rajski and the parties for whom Mr Bainton QC appeared were received by 4 pm on 8 December and submissions in reply on behalf of the parties for whom Mr Bainton QC appeared were received by 4 pm on 15 December. Contrary to the court's order submissions from the parties for whom Mr Heydon QC appeared were filed on 9 December and submissions in reply on behalf of Raybos and Dr Rajski were filed on 16 December; consistently with the court's directions these have been treated as not filed.