HORSESHOE PASTORAL CO PTY LTD v MURRAY SMITH TRADING AS SOUTH COAST TILE ANDSLATE CO [1995] NSWCA 200

HORSESHOE PASTORAL CO PTY LTD v MURRAY SMITH TRADING AS SOUTH COAST TILE AND SLATE CO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and POWELL JJA 7 November 1995, 7 November 1995 [1995] NSWCA 200

COSTS — indemnity costs — abandonment of appeal — hopeless appeal — delay of three years from judgment — absence of notice warning of claim for indemnity costs — held: Indemnity costs ordered. Huntsman Chemical Co Aust Ltd and Anor v International Pools Aust Pty Ltd and Ors, CA (NSW), 16 March 1995; [1995] NSWJB 29 consd — giving such a notice is not an absolute pre-requisite but it makes an order for indemnity costs more likely.

COSTS — indemnity costs — justification of order — late abandonment of appeal — appeal apparently without merit — credibility findings make prospects of success negligible — delay in giving effect to judgment of nearly three years — absence of notice of claim for indemnity costs — whether such costs should be ordered — held: (1) At least in commercial litigation, a notice of warning that indemnity costs will be sought will ordinarily be a prerequisite to the recovery of such costs. Huntsman Chemical Co Australia Ltd and Anor v International Pools Australia Pty Ltd and Ors, Court of Appeal (NSW), unreported, 16 March 1995; [1995] NSWJB 29; (2) But in the present case, despite the absence of such notice, the circumstances were such as to justify an indemnity costs order.

Kirby P At the last minute this appeal was abandoned. The Court received word that the appeal was not proceeding only yesterday afternoon.

This morning we have heard argument concerning the level of costs that should be provided as a consequence of the appeal's being dismissed in consequence of its abandonment. It is common ground that the appeal must be dismissed with costs. The matter in contest has been whether the costs ordered should be ordered at a particular level. The exact significance of any additional order that we make has not been explored.