GRUZMAN PTY LTD v BATEMAN and ORS [1996] NSWCA 235

GRUZMAN PTY LTD v BATEMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE JA, GILES and ABADEE AJJA 17 October 1996, 17 October 1996

[1996] NSWCA 235

FINDINGS on fact not disturbed — appeal withdrawn on day of hearing — appellant ordered to pay costs on solicitor client basis.

Cole JA The issue before the Court relates to costs of this appeal. That is so because the appellant Gruzman Pty Ltd this morning first sought to withdraw the appeal and subsequently consented to the appeal being dismissed. Once that consent was forthcoming the respondents to the appeal sought an order for costs against the appellant on a solicitor and client basis. The respondents made other applications which have subsequently been withdrawn and that is the only extant application with which this Court must deal.

Before turning to the history of the events leading up to today it is important to have regard to the nature of the litigation and the findings of the trial judge, Sinclair DCJ. The appellant Gruzman Pty Ltd sued the respondents for architectural fees for alterations. Shortly put, the respondent's defence raised was that the contract between the parties provided that the cost of work should be approximately $80,000, whereas the building as designed by Gruzman Pty Ltd would have cost some $330,000 to construct.

Further the respondents said they had made known to the appellant that they had entered into a conditional contract to purchase the building subject to development approval being obtained from the relevant counsel by 24 October 1987 and that the appellant was obliged to prepare and lodge an appropriate development application and plans to permit that approval to be obtained. They alleged there was no specific agreement between the parties concerning the payment of fees on account and that in breach of contract the appellant had withdrawn the development application thus resulting in approval not being obtained and the consequence that the conditional contract lapse.