TROULIS v VAMVOUKAKIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MASON P and STEIN JA 6 May 1998 [1998] NSWCA 236 Gleeson CJ, Mason P and Stein JA On 27 February 1998 we delivered our reasons for judgment in this appeal, but we refrained from making orders, giving the parties further time to file written submissions as to the formal orders, including orders as to costs, which should be made to give effect to our reasons. Those written submissions have now been received and considered. The only area of substantial disagreement between the parties related to the question of costs. The relevant considerations have been canvassed at length in the written submissions. We do not intend to go over them in detail, but we note the following features of the case which are included amongst the matters of significance. The respondents, as plaintiffs in the court below, were ultimately held to be entitled to judgment for $21,020.43. There were multiple issues in dispute at the trial, on which both sides achieved a measure of success. The appellants were substantially successful on the appeal. However, most of the points they raised were decided against them. They succeeded on the argument as to damages raised on pll and p12 of the written outline of submissions filed in advance of the appeal. That argument was met, and an attempt to answer it was provided, in para6 of the outline of submissions for the respondent filed in advance of the appeal. The point was argued at length in oral argument and occupied a significant part of the hearing time of the appeal. (No objection was taken at the time that the point was not covered by a ground of appeal. Such an objection was raised recently. In the circumstances, we will include an order giving the appellants leave to amend their notice of appeal). Considering the above matters, and all the other matters raised in the written submissions, we have come to the following conclusion as to costs. The order for costs made by the trial judge should be set aside. Each party should bear his or her own costs of the proceedings at first instance. The respondents should pay half of the appellants' costs of the appeal and cross-appeal and should have a certificate under the Suitors Fund Act. We note the information we have been given as to various offers of compromise. We note also the form of those offers, and the multiplicity of issues between the parties. We have taken these matters into account in reaching the decision expressed above. We have also noted what has been put as to the arbitration and its costs. We make the following orders: 1 The appellants have leave to amend the notice of appeal to raise the point as to damages taken on p11 and p12 of the outline of submissions for the appellants filed in advance of the hearing of the appeal. 2 UNREPORTED JUDGMENTS 2 The appeal is allowed; the cross-appeal is dismissed. 3 The verdicts and orders of the trial judge are set aside. 4 In lieu thereof there will be - (a) Verdict for the plaintiffs on the claim for conversion including 5 interest to judgment of $34,045.43. (b) Verdict for the defendants on the plaintiffs' claim under the Fair Trading Act. (c) Verdict for the cross-claimants on the cross-claim including interest to judgment of $13,025.00. 10 5 There will be judgment for the plaintiffs in the sum of $21,020.43. 6 Each party is to bear his or her own costs of the proceedings at first instance; there will be no order as to the costs of the arbitration. 7 The respondents are to pay one-half of the appellants' costs of the appeal and cross-appeal and are to have a certificate under the Suitors Fund Act.