BRAY v WHITBY [1993] NSWCA 35

BRAY v WHITBY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA, PRIESTLEY JA and HANDLEY JA 20 May 1993

[1993] NSWCA 35

Mahoney JA. This application comes before the court following the delivery of the court's judgment in the appeal in this matter. In the judgment handed down by the court no order was made as to the costs of the appeal. The judgment has not been entered and application has been made by the parties to the court to deal with the costs of the appeal.

The substance of the matter is that the appeal was brought on a number of grounds going to liability and otherwise and a ground in relation to, as I may call, the Gogic principle, relating to an award of interest.

When the appeal was heard the appellant failed on all of the substantial grounds but succeeded on the Gogic point. It now emerges from what counsel has put to the court today that the Gogic point was not taken at the trial. This no doubt was because of the date on which the Gogic decision was given. However, it is said that the Gogic point was taken by the appellant but only shortly before the hearing of the appeal and when the point was taken the point was conceded, so that, as the matter came forhearing before the court on appeal there was, in substance, no contest in relation to the matter.

If that be so then the Gogic point apart, the respondent succeeded wholly on the matters that were the subject of contest at the appeal. Whatever would have been the position had the Gogic point been the only one, in the event that was not the subject of contest. In the circumstances as they have now been placed before the court, in my opinion the order which should be made is that the appellant, though successful on the appeal, should pay the respondent's costs of the appeal in toto. That means that, although the appellant succeeded formally on the Gogic point at the hearing of the appeal, it failed in relation to the substantial issues and, therefore, in my opinion, it should pay the whole of the respondent's costs of the appeal.