GRAHAM V ALUMA-LITE PTY LTD [1997] NSWCA 129

GRAHAM V ALUMA-LITE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and COLE JJA 21 March 1997, 25 March 1997

[1997] NSWCA 129

Application that Court of Appeal reconsider costs order made at time of delivery of judgment — no sufficient reason shown — application refused.

Mason P I agree with Priestley JA.

Priestley JA A year ago a court comprising Clarke and Cole JJA and myself gave judgment upholding an appeal by Mrs Graham against a judgment of Hulme J by which he dismissed an application to set aside a default judgment obtained against her by Aluma-Lite Products Pty Ltd. Aluma-Lite was ordered to pay Mrs Graham's costs of the appeal. Last month a notice of motion was filed by Aluma-Lite asking the court to change the order for costs. In support of the application a mass of evidence was put before the court. In what follows I will try to restrict myself to stating the main facts.

The proceedings in which Mrs Graham succeeded in the appeal had been brought against her by Aluma-Lite seeking possession of the dwelling in which she lived, of which she was the mortgagor and Aluma-Lite the mortgagee. Aluma-Lite obtained default judgment. An application to set aside the default judgment came before Hulme J. He dismissed it. Mrs Graham sought to appeal against Hulme J's decision. The appeal came on for hearing on 13 November 1995. Mrs Graham had no legal representation. The position was that the appeal was not competent unless leave to appeal were granted. The proceedings were adjourned to 4 December 1995 so that Mrs Graham could argue an application for leave to appeal, and, if necessary, then argue the appeal. She was ordered to pay Aluma-Lite's costs of 13 November 1995S.

On 4 December 1995 Mrs Graham appeared without representation. It appears from Aluma-Lite's written submissions of 20 March 1997 that on this occasion the court granted leave to appeal and adjourned the hearing of the appeal so that Mrs Graham might make further efforts to get pro bono assistance. The written submissions also record, perhaps confusingly, that the costs of 4 December 1995 on the summons for leave to appeal should be costs in the appeal, but that Mrs Graham should pay the costs of the day.