Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179

New South Wales Court of Appeal

CITATION : Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179 FILE NUMBER(S) : CA 40526/99 HEARING DATE(S) : 6 June 2002 JUDGMENT DATE : 6 June 2002

PARTIES : Marrickville Municipal Council (Appellant) Yousef Moustafa (Respondent) JUDGMENT OF : Mason P at 30; Heydon JA at 1; Foster AJA at 33

COUNSEL : Mr D B McGovern (Appellant) Mr P A Regattieri (Respondent) SOLICITORS : Phillips Fox (Appellant) Jones Staff & Co (Respondent) CATCHWORDS : Courts - appellate courts - NSW Court of Appeal - powers - leave to appeal given on condition - appeal from interlocutory orders - Courts - appellate courts - NSW Court of Appeal - powers - condition that appellant pay respondent's costs in any event - where leave sought to run 'test case' - appropriate conditions in circumstances - where 'test case' of interest to appellant only - appellant frequent litigant - respondent litigant for first and last time - Practice - counsel - duties of - duty to put court in position where able to dispose of costs matters finally when judgment reserved - D DECISION : See paragraph 28

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40526/99

MASON P HEYDON JA FOSTER AJA

6 June 2002 MARRICKVILLE MUNICIPAL COUNCIL v MOUSTAFA Judgment 1 HEYDON JA: On 26 June 2000 Priestley JA and Clarke AJA extended the time for filing a Summons seeking leave to appeal and granted that leave on condition that the Council "bear the costs of the appeal in any event". 2 On 11 July 2001 the appeal was heard. It was argued by senior counsel on each side. 3 On 24 October 2001 the Court of Appeal gave judgment allowing the appeal. Order 4 was: "The plaintiff should bear the defendant's costs of the trial and the appeal." 4 On 25 October 2001 the plaintiff's solicitors wrote to the Council's solicitors seeking their consent to an alteration in the orders made by the Court of Appeal so as to compel the Council to pay the plaintiff's costs of the appeal conformably with the terms of the leave. 5 On 3 December 2001 a telephone conversation took place between the solicitors. 6 On 4 December 2001 the Council's solicitors wrote a letter indicating that it would oppose the plaintiff's application but without giving reasons. 7 On 4 December 2001 the plaintiff filed a Notice of Motion seeking an amendment to the court's orders. 8 The Court which allowed the appeal comprised Priestley JA, Powell JA and myself. Priestley JA has retired. Powell JA is on long leave. Accordingly, it has been necessary to reconstitute the Court to hear the plaintiff's motion. 9 In its original undated Outline of Submissions, the Council argued that: