Goulding v Kirby [2003] NSWCA 214

New South Wales Court of Appeal

CITATION : Goulding v Kirby [2003] NSWCA 214 HEARING DATE(S) : 23 September 2002 JUDGMENT DATE : 5 August 2003

JUDGMENT OF : Hodgson JA at 1; Santow JA at 2 DECISION : (1) The claimants (being the appellants) pay the opponent's (being the respondent's) costs of the summons for leave to appeal (CA 40728/02) on a party/party basis, and in addition pay the costs of the appeal (CA 41078/01) including the hearing on 23 September 2002 and the appearance on 9 December 2002, but not including the costs in (2) below; and (2) The opponent (being the respondent) pay so much of the claimants' (being the appellants') costs of the appeal (CA 41078/01) as is limited to the preparation of the red and orange books and pay the claimants' (Gouldings') costs of and incidental to the Notice of Motion filed on 10 July 2002; (3) No order is made as to costs pertaining to the submissions concerning costs.

CATCHWORDS : COSTS - leave to appeal refused - appeal treated as incompetent - in the interim between the hearing and the determining of costs one of the original judges resigned from the Court of Appeal - s45AA consent given by the parties to the two remaining Judges of Appeal determining the matter - written submissions on costs - respondents challenged the competency of the appeal - letter of offer of 29 July 2002 referred to not claiming costs on the appeal but silent on costs of the application for leave to appeal - letter came too late to justify indemnity costs - competency of appeal challenged outside the time allowed pursuant to Pt 51 r27 SCR - respondent in absence of any order otherwise therefore disentitled to any costs when appeal treated as incompetent whether Court should make an order otherwise ordering - appellants' material for appeal prepared prior to challenge - duplication in need for preparation of material for concurrent application for leave to appeal and appeal. LEGISLATION CITED : Supreme Court Act s45AA Supreme Court Rules Pt 51 r27 Carolan v AMF Bowley Pty Ltd t/as Bennetts Bowling Green (NSWCA, 16 November 1995, unreported) CASES CITED : Falamaki v Wollongong City Council [2001] NSWCA 55 Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 PARTIES : Leonard Charles GOULDING Ruth GOULDING (Appellants) Robert Raymond KIRBY (Respondent) FILE NUMBER(S) : CA 41078/01; 40728/02 COUNSEL : A Ogborne (Appellants) J Coombs, QC/ G Ellis (Respondent) SOLICITORS : The Bruce Stewart Commercial Practice (Appellants) Colin Biggers & Paisley (Respondent)