CASTLEREAGH STUD PTY LTD v HOOPER and ANOR [1994] NSWCA 43

CASTLEREAGH STUD PTY LTD v HOOPER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirByY P, HANDLEY and COLE JJA 16 September 1994, 22 September 1994

[1994] NSWCA 43

Appeal — credibility evidence Held — no incontrovertible evidence to authorise appellate disturbance. Costs — indemnity costs — District Court — power to amend — now conferred by statute with retrospective effect.

APPEAL — credibility findings — whether displaced by incontrovertible evidence or otherwise glaringly improbable — District Court action for fees for service of mares, agistment and foaling — offsetting claim for sale of prefabricated shed — trial judge accepts evidence as to sale price of shed — evidence supported by witness accepted as reliable — held: The conclusion of the trial judge, based upon evidence found credible, could not be disturbed by the Court of Appeal. Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472 applied.

COSTS — District Court — indemnity costs — whether order valid — held: (upholding order): The decision of the Court of Appeal in Milosevic vy Government Insurance Office of New South Wales (1993) 31 NSWLR 323 (CA) has been reversed by Courts Legislation (Amendment) Act 1993 with power, retrospectively conferred, to make orders for costs on an indemnity basis. Courts Legislation (Amendment) Act 1993.

ORDERS Appeal dismissed with costs.

Kirby P I agree with Cole JA. Handley JA I agree with Cole JA.

Cole JA The principal of the appellant, Castlereagh Stud Pty Ltd, is a Mr Bridge. The first respondent, and principal of the second respondent, SJ Hooper Pty Ltd, is Mr Hooper. Mr Bridge conducted a stud at which various mares owned by Mr Hooper were sent for service. The appellant claimed service, agistment and foaling fees. There was dispute regarding the terms of payment for those services.