NATIONAL ACCEPTANCE CORPORATION PTY LTD v HARTNIG [1997] NSWCA 218

NATIONAL ACCEPTANCE CORPORATION PTY LTD v HARTNIG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and MEAGHER JJA 15-16 April 1997, 18 April 1997

[1997] NSWCA 218

COSTS — WHETHER TRIAL JUDGE SHOULD HAVE A WARDED COSTS TO SUCCESSFUL PARTY — Finance company brought proceedings against three defendants to recover moneys owing under lease agreement — first defendant in liquidation when proceedings commenced — proceedings against first defendant discontinued — second defendant died during proceedings — proceedings against second defendant discontinued — series of offers and counter offers of settlement all rejected — judge finds for plaintiff on all issues and decides there shall be no order as to costs. On appeal: plaintiff appeals costs order — Held: judge took irrelevant matters into account — costs order set aside — sound reasons for varying usual order — appeal court in re-exercise of discretion concerning costs orders respondent to pay half costs of first instance proceedings.

Mason P, Priestley and Meagher JJA At the end of the oral argument in this appeal on 15 April 1997, the case was stood over for delivery of judgment the following morning; however, the pressure of business then made it expedient for the court simply to announce its orders and to say that reasons would be given subsequently. These now follow.

The grounds of appeal were only concerned with questions of interest and costs. Before the appeal came on for hearing the respondent had agreed that the appellant must succeed on the interest point. The amount to be added to the judgment was also agreed.

The only argument left was about the trial judge's costs order. The appellant, the plaintiff in the first instance proceedings, had succeeded in its claim, and the respondent had failed in a cross-claim. The trial judge had decided to make no order for costs.