GIBSON v COB SUPPLY COMPANY PTY LTD [1997] NSWCA 123

GIBSON v COB SUPPLY COMPANY PTY LTD SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

PRIESTLEY JA, POWELL JA and BROWNIE AJA 29 May 1997

[1997] NSWCA 123

Priestley JA. This is an appeal brought by Mr Gibson against Cob Supply Company Pty Limited. Mr Gibson has been appearing for himself in the course of the proceedings.

On 10 March of this year an offer was made by the respondent to the appeal that the appeal should be allowed; that the judgment of 7 July 1993, against which Mr Gibson was appealing should be set aside; that a new trial should be ordered; that the appellant should be entitled to his costs of the hearing before Newman J — and there is a matter involved in that that I will come back to in a moment — and that the appellant should have his costs of the appeal up to 10 March 1997.

The appellant was not agreeable at that time to that course. There was an interlocutory hearing later before the court when a bench of two were sitting. The upshot of the situation that had arisen was that the appeal and a notice of motion, which the respondent had filed, seeking the orders that I have just outlined, and which had been before the court of two that I referred to, should both come on to be dealt with today.

When the matter came on for hearing today the court discussed with Mr Gibson and counsel for the respondent various aspects of the situation that had arisen. As a result of that discussion the court indicated that it proposed to make orders along the following lines: That the appeal be allowed; that the judgment below be set aside; that a new trial be ordered; that the appellant be entitled to his costs of the first trial and his costs of the appeal up to 10 March 1997, that the respondent be entitled to the costs of the appeal from that date until today, and that the payment of the balance found owing to either the appellant or the respondent after the effect of the cost orders has been determined, should be stayed until completion of the new trial that has been ordered.