WATERS v P C HENDERSON (AUSTRALIA) PTY LTD [1994] NSWCA 338

WATERS v P C HENDERSON (AUSTRALIA) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 6 July 1994, 6 July 1994

[1994] NSWCA 338

PRACTICE & PROCEDURE — Commercial Division — reference to referee and report back — orders made as to costs and interest — no error as to principle on interest — whether costs should have been ordered by reference to particular issues won or lost — held: No errors of principle — reasons for restraint in appellate disturbance of costs orders explained.

PRACTICE & PROCEDURE — interest — costs — discretionary orders by Judge in Commercial Division — reference of question to referee — each party partly successful — held; (1) No error shown in discretionary order as to interest. Judge referred to proper principle that interest is to compensate party for being kept out of its entitlement; (2) No error sufficient to entitle the Court of Appeal to disturb the exercise of the Judge's discretion on costs had been demonstrated — observations by Mahoney JA and Priestley JA (Kirby P agreeing) on the reasons for not disturbing discretionary judgments on costs, particularly in commercial litigation.

INTEREST — purposes of — compensation for being kept out of entitlement to moneys as found by litigation.

COSTS — discretionary orders — separate issues — whether possible and convenient — whether clear error of principle shown — held: Appeal dismissed.

Supreme Court Rules Pt52 rll.

Mahoney JA This appeal arises from a decision by Cole J in the Commercial Division given on 25 October 1991. There had been before his Honour a proceeding in a commercial dispute involving a claim by the plaintiff for recovery of moneys for goods and, I think, services and a cross-claim by the defendant. His Honour ultimately found the amount due from the defendant to the plaintiff to be $73,635.93. He made an award of interest of $39,410.35 and gave judgment accordingly for $113,046.28. He ordered that the defendant pay the plaintiff's costs in the terms to which his Honour referred in his judgment.