INSURERS' GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LIMITED (IN LIQUIDATION) v WIDE FORM CONSTRUCTIONS PROPRIETARY LIMITED [1997] NSWCA 159

INSURERS' GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LIMITED (IN LIQUIDATION) v WIDE FORM CONSTRUCTIONS PROPRIETARY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Mason P, BEAZLEY JA and GROVE AJA 11 April 1997

[1997] NSWCA 159

Mason P. In this matter the appellant frankly concedes that without leave to amend the Notice of Appeal the appeal is doomed. The appellant and the first, second and third respondents also frankly concede that at the hearing of the matter the question of s 68A was raised but put aside consciously and that evidence may have been called or expiration may have occurred referrable to that issue which did not in fact occur.

Having regard to the principles in Coulton v Holcombe it would therefore appear to me that the appeal is doomed. 1 would therefore refuse leave to amend the grounds of appeal and dismiss the appeal. I will call on counsel to say something about the issue of costs. That would be the substantive disposal which I would propose.

Beazley JA. I agree. Grove AJA. I also agree.

Mason P. The question of the costs of your client Mr Cranich.

CRANICH: We would be seeking costs. We weren't the agitator of the appeal, we were brought along here, because our interest may, at the end of day, it coincided in some respects, doesn't necessarily mean that — we didn't seek to raise the appeal, we wouldn't have incurred the cost over such a small sum of money I suspect. So we would be seeking costs.

WEST: As to Mr Cooley's costs we would have absolutely no objection. As to my learned friend Mr Cranich we would rather think that each should pay his own costs particularly in the light of the stance adopted in submissions which were put to the Court and with which they were prepared to run.

Beazley JA. What were his clients supposed to do faced with your submissions with which they agreed rightly or wrongly.