New South Wales Court of Appeal CITATION : Coffs Harbour City Council v Backman & Ors (No. 2) [2002] NSWCA 131 FILE NUMBER(S) : CA 40463/99 HEARING DATE(S) : Submissions on the papers JUDGMENT DATE : 10 May 2002 Coffs Harbour City Council (Appellant) PARTIES : Theodore Backman (1st Respondent) William David Featherstone and Margaret Featherstone (2nd Respondents) JUDGMENT OF : Handley JA at 1; Stein JA at 2; Grove AJA at 11 LOWER COURT JURISDICTION : District Court LOWER COURT DC 8/97 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : C R C Newlinds/S P W Glascott (Appellant) COUNSEL : L King SC/J Neal (1st Respondent) A P Coleman (2nd Respondents/Cross Appellant) Phillips Fox (Appellant) SOLICITORS : Henry Davis York (1st Respondent) B L Abbott & Co, Coffs Harbour (2nd Respondent) CATCHWORDS : NOTICE OF MOTION - whether court should amend costs order - ND LEGISLATION CITED : N/A CASES CITED: Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202 DECISION : Notice of Motion dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40463/99 DC 8/97 HANDLEY JA STEIN JA GROVE AJA Friday, 10 May 2002 COFFS HARBOUR CITY COUNCIL v BACKMAN & ORS (NO. 2) Judgment 1 HANDLEY JA: I agree with Stein JA. 2 STEIN JA: By Notice of Motion the appellant (the Coffs Harbour City Council) seeks to amend the costs orders made in this appeal on 29 June 2001, ([2001] NSWCA 202). The parties agree that the court may deal with the motion in their absence and upon the written submissions filed in the court. 3 The relevant costs order made on 29 June 2001 was as follows: 2. Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 4 The Notice of Motion seeks to delete this order and substitute an order that second-named respondents (William David Featherstone and Margaret Featherstone) pay the appellant's costs of the appeal, as well as the costs of the first respondent (Theodore Backman, the plaintiff). 5 I was a member of the court on 10 July 2000 which granted the appellant leave to appeal. On that occasion the court said: 2. As we have indicated in discussion, we are concerned that the plaintiff (the first opponent) is, as far as possible, not prejudiced by the appeal, bearing in mind the very small verdict involved and other circumstances outlined by his counsel. 3. Accordingly, we have decided to grant leave conditionally. We are satisfied that the claimant should have conditional Leave to Appeal and that the second opponent should also have leave to cross-appeal out of time. [J paras 2 and 3] 6 Accordingly, the court granted the appellant 'leave to appeal conditionally upon it agreeing to pay the plaintiff's costs of the appeal in any event' (my emphasis). Pursuant to the leave to appeal granted, the appellant proceeded with its appeal. 7 On 29 June 2001 the court published its judgment on the appeal. I gave the lead judgment with which Handley JA and Grove AJA agreed. The appellant succeeded in its appeal. In para 1 of my judgment I recorded that the appellant had been granted 'leave to appeal conditional upon' it 'paying the plaintiff's costs of the appeal in any event'. Accordingly, order No. 2 was made. It is this order which the appellant seeks to amend. 8 The written submissions filed on behalf of the appellant maintain that but for the undertaking given by the appellant on the granting of leave to appeal, costs would have ordinarily followed the event. That is, that the respondents would have been ordered to pay the appellant's costs. The submission continues that in circumstances where the second respondents have been found liable for the plaintiff's injuries, it is unfair to require the appellant to pay the plaintiff's costs of the appeal. 9 In my opinion, the appellant's motion is without merit. No reason has been shown which would entitle the appellant to resile from its undertaking to pay the plaintiff's costs of the appeal in any event. The appellant is seeking to re-agitate the costs order which, as a condition of being granted leave to appeal, it had accepted. That but for the undertaking, costs would have followed the event, is quite beside the point. No reason has been demonstrated why the court should amend the costs order made on 29 June 2001. 10 The Notice of Motion should be dismissed with costs. 11 GROVE AJA: I agree with Stein JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.