COMBINED AUCTIONS PTY LTD v GRAY EISDELL TIMMS PTY LTD (No 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and STEIN JJA 24 February 1998 [1998] NSWCA 61 Costs — of trial — of appeal — appeal allowed in part — apportionment of costs Gleeson CJ I agree with the orders as to costs proposed by Stein JA. Priestly JA I agree with Stein JA. Stein JA On 5 December 1997 the court allowed the appeal in part and made the following orders: 1. Appeal upheld in regard to Young J's order that the appellant register in the name of the respondent the transfer to the respondent of Ms Berns' shares set aside; that order set aside. 2. Appeal in regard to the declaration that the resolutions purported to have been passed at a general meeting of the members of the appellant held on 4 October 1994 were void, dismissed. 3. Costs order below set aside. 4. Written submissions as to the costs orders this court should make in respect both of the trial and the appeal to be filed by the parties within seven days of the date of publication of the court's judgment. Written submissions on costs have been received. The appellant's position is as follows: As to the trial, the appellant should be allowed the whole of its costs up to 24 November 1994 and one-half of its costs of the hearing before Young J after that date. As to the appeal, the appellant submits that it should be allowed three-quarters of its costs. The respondent's position is that: As to the trial, the respondent should pay one-half of the appellant's costs. As to the appeal, it should be ordered to pay 65% of the appellant's costs but receive a certificate under the Suitors' Fund Act. The appeal and the trial involved essentially two issues. First, the correctness of the order made by Young J requiring the appellant to register in the name of the respondent the transfer to the respondent of Ms Berns' shares. Second, the validity of resolutions passed at a general meeting of the appellant held on 4 October 1994. More accurately, Young J declared all four resolutions passed at the meeting to be invalid and the appellant sought only to set-aside resolution number 3 as void, not all four resolutions. In upholding the primary issue argued in the appeal, the court noted that the question of whether the resolutions were severable was never raised before Young J. Further, in the light of the primary finding on the appeal it followed that the respondent had no standing to challenge the resolutions. For these reasons, the court refused to make the limited order the appellant asked for. 2 UNREPORTED JUDGMENTS So far as the costs of the trial are concerned, the appellant is entitled to the whole of its costs up to the filing of the amended summons on 24 November 1994. Thereafter, I think that the submission of counsel for the appellant that the appellant should receive one-half of its costs of the trial is appropriate. The written submissions on behalf of the respondent do not depart very far from this submission. As to the appeal, the difference between the parties is 10% (viz 75% cf 65%). In my opinion, the appellant's submission should be accepted. It is a reasonable reflection of the appeal. I would propose the following orders as to costs: 1. That the respondent (plaintiff) be ordered to pay the costs of the appellant of the trial before Young J up to 23 November 1994. 2. That the respondent (plaintiff) be ordered to pay one-half of the costs of the appellant of the trial before Young J after 23 November 1994. 3. That the respondent be ordered to pay three-quarters of the appellant's costs of the appeal. 4. That the respondent, if otherwise entitled, receive a certificate under the Suitors' Fund Act. 1. That the respondent (plaintiff) be ordered to pay the costs of the appellant of the trial before Young J up to 23 November 1994. 2. That the respondent (plaintiff) be ordered to pay one-half of the costs of the appellant of the trial before Young J after 23 November 1994. 3. That the respondent be ordered to pay three-quarters of the appellant's costs of the appeal. 4. That the respondent, if otherwise entitled, receive a certificate under the Suitors' Fund Act. Counsel for the appellant: M Walton Solicitors for the appellant: Tress Cocks & Maddox Counsel for the respondent: F G Lever/J Gooley Solicitors for the respondent: Swaab & Associates