Grogan v Thiess Contractors Pty Limited & Anor [2000] NSWSC 1101

New South Wales Supreme Court

CITATION : Grogan v Thiess Contractors Pty Limited & Anor [2000] NSWSC 1101 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13117/99 HEARING DATE(S) : 17/07/2000, 18/07/2000 JUDGMENT DATE : 22 December 2000

PARTIES : Peter Grogan trading as P Grogan & Co v Thiess Contractors Pty Limited & Anor JUDGMENT OF : Barr J at 1

COUNSEL : J Sexton SC - Plaintiff/Applicant DF Rofe QC/MJ Lawler - Defendants/Respondents SOLICITORS : Gadens Lawyers - Plaintiff/Applicant Crisp & Associates - Defendants/Respondents CATCHWORDS : Interest on costs - proceedings in Common Law Division - whether interest not payable unless Court otherwise orders. LEGISLATION CITED : Supreme Court Act 1970, s 95(3), (4) Fischer v David Syme & Co Limited (1989) 18 NSWLR 606 Goodwin v Phillips (1908) 7 CLR 1 at 14 McWilliams Wines v Liaweena (1993) 32 NSWLR 190 CASES CITED : The Minister v Carson (1994) 35 NSWLR 342 Minister for Immigration and Ethnic Affairs; Ex parte Quin (1989) 186 CLR 622 Osborne v Kelly & Klimenko [1999] SASC 486 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 DECISION : See para 42.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 22 December 2000

13117/99 - Peter Grogan Trading as Peter Grogan & Co v Thiess Contractors Proprietary Limited & Anor

JUDGMENT 1 HIS HONOUR: By his summons the plaintiff seeks an order under s 95 Supreme Court Act or otherwise ordering the defendants to pay interests on assessed costs and other costs incurred by him in certain proceedings in the Common Law Division. The plaintiff sued the defendants for the unlawful termination of a contract in 1989. The proceedings commenced on 5 February 1992 in the Commercial List. The question of liability was referred to a Referee. The Referee reported, and after a contested hearing the Court remitted two further matters for consideration. The Referee reported a second time and the Court made orders adopting the two reports concerning liability. The question of damages was referred to the Referee and a timetable set. The reference continued on and off for twenty-eight days and the Referee published a report. After a further contested hearing the Court adopted the report but remitted two matters for consideration by the Referee. The Referee published a second report. After a further contested hearing the Court determined the matter on 12 April 1995 and made orders as to damages, interests and costs. Judgment in favour of the plaintiff in the sum of $825,295 plus costs was entered on 20 April 1995. The defendants appealed and moved for a stay of execution on the judgment, which was granted upon the defendants' securing a sum of money by bank guarantee. The appeal was heard on 11 December 1995 and dismissed on 24 July 1996. 2 Offers and counter-offers were made about quantum of costs. On 21 January 1997 the defendants paid $72,568 in respect of undisputed costs and on 25 March 1998 they paid a further $450,000 on account. The plaintiff filed an application for the assessment of costs on 4 January 1999 and on 23 July 1999 the costs assessor certified that the sum of $754,828.97 was fair and reasonable. On 12 August 1999 the defendants paid the balance of that sum. 3 The defendants made three broad responses to the plaintiff's claim. First they submitted that the power of the Court to award interest on costs was confined to that set forth in s 95(3) Supreme Court Act, the effect of which was interest was not payable unless the Court otherwise ordered, and no occasion arose to vary the ordinary position. Secondly, they raised circumstances which it was submitted disentitled the plaintiff to interest on costs. Thirdly, they attacked the plaintiff's calculations.