NEWELLS CREEK SAWMILLING PTY LTD v SYRON (NO 2) [1996] NSWCA 398

NEWELLS CREEK SAWMILLING PTY LTD v SYRON (NO 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER, JJA 3 April 1996

[1996] NSWCA 398

Costs follow event.

Clarke JA On 6 July 1994 this Court ordered that the appeal be allowed and that there be a new trial of the respondent's action limited to damages. The Court did not, however, make any order as to costs because the respondent advised that he had made an offer of compromise and he indicated that if, on the re-trial, he secured a verdict higher than the offer he would be seeking an order for indemnity costs of the appeal. It may be on reflection that the court should simply have made the usual order.

Whether that be so or not the question now arises what order should be made as to the costs of the appeal. There are, as events turned out, no complicating factors for the respondent did not recover a verdict for a greater sum than his offer. In the circumstances, there would seem to me to be no reason why the usual order for costs should not be made.

The respondent has argued that as the appellant initially sought a general new trial and was unsuccessful in securing that order the appellant should only receive half its costs.

In my opinion the usual rule, that costs follow the event, should be applied and the respondent should pay the appellant's costs of the appeal and should have a certificate under the Suitors Fund Act 1951 in respect of those costs.

Sheller JA I agree with Clarke JA. Handley JA I agree with Clarke JA.

The usual rule, that costs follow the event, is applied and the respondent to pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act 1951 in respect of those costs.

Counsel for the Appellant: H Shore Solicitors for the Appellant: Hunt and Hunt, Newcastle Counsel for the Respondent: RI Goodridge