Bridge Printery v Mestre (No.2) [1999] NSWCA 449

New South Wales Court of Appeal CITATION : Bridge Printery v Mestre (No.2) [1999] NSWCA 449 FILE NUMBER(S) : CA 40858/97 HEARING DATE(S) : Written submissions only JUDGMENT DATE : 8 December 1999

Bridge Printery Pty Ltd (Appellant) PARTIES : v Jose Mestre (Respondent) JUDGMENT OF : Mason P at 1; Fitzgerald JA at 1; Davies AJA at 1

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 14815/92 LOWER COURT JUDICIAL OFFICER : Master Harrison

COUNSEL : A: Mr J N Gleeson QC, Mr E Romaniuk R: Mr R S Sheldon SOLICITORS : A: Sparke Helmore R: Carroll & O'Dea CATCHWORDS : Costs; no sufficient reason why respondent should not pay successful appellant's costs. Arbitration (Civil Actions) Act 1983 ACTS CITED : Suitors Fund Act 1951 Supreme Court Act 1970 Supreme Court Rules CASES CITED: Fotheringham v Fotheringham (No.2) [1999] NSWCA 21 DECISION : Respondent pay appellant's costs of appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40858/97 CLD 14815/92 MASON P FITZGERALD JA DAVIES AJA WEDNESDAY 8 DECEMBER 1999

BRIDGE PRINTERY PTY LTD v Jose MESTRE (NO.2)

JUDGMENT ON COSTS

1 THE COURT: Judgment in this matter was delivered on 5 October 1999. The appellant succeeded in that the Court reduced the damages awarded to the respondent by a Master. The parties have carried out necessary calculations, and it is agreed that the judgment for the respondent against the appellant should be for $327,080 "inclusive of interest and clear of workers compensation payments made". It is also agreed that the appellant should be ordered to pay the respondent's costs of the trial, including an arbitration under the Arbitration (Civil Actions) Act 1983. 2 The appellant submits that the respondent should pay its costs of the appeal but, if so entitled, should have a certificate pursuant to the Suitors Fund Act 1951. The respondent argues that the appellant should pay his costs of the appeal or, in the alternative, pay its own costs of the appeal. However, if he is ordered to pay the appellant's costs of the appeal, the respondent seeks a certificate pursuant to the Suitors Fund Act. 3 The respondent's principal submission was that he is entitled to the costs of the appeal by Part 52A r 30(4) of the Supreme Court Rules because the reduced damages awarded to the respondent by this Court were more than he was awarded by the arbitrator who conducted the arbitration under the Arbitration (Civil Actions) Act and it was the appellant which required a rehearing by the Master after the arbitration. Although the appeal to this Court was also a rehearing, Supreme Court Act 1970, subs 75A(5). it was not the rehearing referred to in Part 52A r 30(4), which has no application to the costs of the appeal. 4 The costs of the appeal are therefore, in the discretion of the Court, Supreme Court Act 1970, s 76. unfettered by Part 52 r 30(4). Cf. Fotheringham v Fotheringham (No.2) [1999] NSWCA 21. In accordance with Part 52A r 11 of the Supreme Court Rules, that discretion is ordinarily exercised in favour of the party which succeeds on the appeal. 5 However, the respondent argued that it would be unfair to make him pay the costs of the appeal because of the appellant's refusal to accept the arbitrator's award to the respondent of an amount less than the amount of this Court's judgment in favour of the respondent. That submission is without merit. What is more significant for present purposes is that this Court reduced the damages awarded to the respondent by the Master. 6 The only other matter advanced by the respondent in support of his argument with respect to the costs of the appeal was that the appellant appealed on liability as well as damages but abandoned the appeal against liability shortly before the hearing of the appeal and did not succeed in relation to all of the complaints which it made concerning the Master's award of damages. 7 There is nothing before the Court to indicate that either the cost of preparation or the cost associated with the hearing of the appeal would have been less if the appellant had confined its appeal to the grounds on which it succeeded. 8 There is therefore no sufficient reason why the respondent should not pay the successful appellant's costs. 9 Accordingly, the Court should make the orders proposed by the appellant, namely, the respondent pay the appellant's costs of the appeal and, if qualified, have a certificate pursuant to the Suitors Fund Act. **********