WYKES and ORS v SAMILK PTY LTD and ORS [NO 2] [1998] NSWCA 268

WYKES v SAMILK PTY LTD [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, BEAZLEY and STEIN JJA 3 August 1998, 18 August 1998

[1998] NSWCA 268

COURT'S discretion to re-open judgment - leave to appeal out of time — fault criterion — whether earlier judgment proceeded on misapprehension as to facts or law

The plaintiffs brought proceedings in the District Court to recover damages, firstly, from the first defendants for breach of an alleged agreement for lease and secondly, from the second defendants, the partners in a law firm, for negligence in respect of the preparation and execution of the lease.

The trial Judge found that the second defendants had acted negligently but held that because the damages were caused by the first defendant, it was unnecessary to deal with the claim against the second defendants. The trial Judge assessed the damages that would be payable by the second defendants if it were necessary to award them and ordered that the second defendants pay the plaintiffs' costs of the proceedings against the second defendants. This cost order was stayed until further submissions were made in relation to costs. After these submissions were made the trial Judge on 16 November 1995 did not vary the costs order and made an additional order, 10.1A "that there will be a verdict for the second defendants against the plaintiffs".

The first defendants appealed and the plaintiffs failed to cross appeal against O10.1A.

On 19 May 1998 the Court allowed the appeal and cross-appeal by the second defendants, set aside the trial Judge's orders other than a verdict for the second defendants against the plaintiffs and dismissed the proceedings against the first defendants. As a result, the plaintiffs failed to recover damages from the first defendants and the second defendants despite the trial Judge's finding of negligence on the second defendants' part.