(2003) ATPR (Digest) 46-238 Reported Decision : (2004) NSW ConvR 56-076 (2004) Aust Contract Reports 90-185 New South Wales Court of Appeal CITATION : Sydney Harbour Casino Properties Pty Ltd v Coluzzi & Anor (No 2) [2002] NSWCA 113 FILE NUMBER(S) : CA 40071/01 HEARING DATE(S) : Motion to vary orders (on papers) JUDGMENT DATE : 28 May 2002 Sydney Harbour Casino Properties Pty Ltd - Appellant PARTIES : Luigi Coluzzi - First Respondent Colliers Jardine NSW Pty Ltd - Second Respondent JUDGMENT OF : Mason P; Giles JA; Heydon JA LOWER COURT JURISDICTION : District Court LOWER COURT DC 007832/98 FILE NUMBER(S) : LOWER COURT Mahoney DCJ JUDICIAL OFFICER : R Macfarlan QC & P Whitford - Appellant COUNSEL : M Symonds (Sol) - First Respondent D Davies SC & S White - Second Respondent PricewaterhouseCoopers Legal - Appellant SOLICITORS : Mark Symonds - First Respondent Mallesons Stephen Jaques - Second Respondent CASES CITED: Sydney Harbour Casino Properties Pty Ltd v Coluzzi & Anor [2002] NSWCA 74. DECISION : 1. Amend order 5 made on 20 March 2002 by deleting "Respondent" and substituting "Second Respondent".; 2. Appellant's motion otherwise dismissed. Appellant to pay Second Respondent's costs of the application. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40071/01 MASON P GILES JA HEYDON JA Tuesday 28 May 2002 SYDNEY HARBOUR CASINO PROPERTIES PTY LTD v COLUZZI & ANOR (No 2) Judgment 1 THE COURT: Following delivery of judgment on 20 March 2002 (Sydney Harbour Casino Properties Pty Ltd v Coluzzi & Anor [2002] NSWCA 74) questions arose as to one of the orders and as to costs. The orders pronounced were: "1. Appeal against the verdict and orders in favour of the first respondent Luigi Coluzzi dismissed. 2. Appeal against the dismissal of the cross-claim against Colliers Jardine NSW Pty Ltd upheld. 3. Set aside the verdict and judgment in favour of the cross-defendant in the cross-claim and, in lieu thereof, order the cross-defendant to indemnify the cross-claimant with respect to the cross-claimant's liability to the plaintiff for damages and costs. 4. Appellant to pay the costs of the first respondent, Luigi Coluzzi. 5. Respondent to pay one half of the appellant's costs of the appeal. 6. Cross-appeal dismissed with costs." 2 These orders have not been entered. 3 The appellant and the second respondent are agreed that order 5 contains a slip in that "Respondent" should read "Second respondent". That correction should be made. 4 The appellant submits that order 5 should be amended so that the second respondent should pay the whole of the appellant's costs of the appeal. We received written submissions on the matter. We pass over the question whether this matter should have been debated at the hearing. The appellant says that it assumed that costs would follow the event. 5 The appellant submits that the amendment is appropriate given that as between it and the second respondent it was entirely successful in the appeal and that it was the conduct of the second respondent alone which gave rise to the first respondent's claim. The appellant submits that this was not a case where the second respondent at any stage asserted that the appellant should not have incurred the expense of defending the plaintiff/first respondent's claim. On the contrary, the second respondent actively expressed the proposition in this Court and below that the appellant was not liable to the first respondent. The appellant points out that it was the second respondent that pressed "even more strongly than the appellant itself" one of the attacks on the s 51A finding against the appellant (see main judgment at [61]). 6 The second respondent submits that by its appeal the appellant sought to achieve two things, namely: (i) overturn the first respondent's verdict against the appellant; and (ii) overturn the second respondent's favourable verdict on the cross-claim against it. 7 It says that, as to the appeal as distinct from the trial, the appellant chose to attempt the first of these things, and could have achieved the second without attempting the first. It submits that the order that the second respondent pay one half of the appellant's costs of the appeal reflects an appropriate apportionment between the appellant's costs of unsuccessfully conducting part of the appeal brought against the first respondent and the appellant's costs of successfully conducting that part of the appeal brought against the second respondent. 8 The second respondent's submissions capture the reasons why we ordered that the second respondent pay only one half of the appellant's costs of the appeal. We therefore decline to vary that order in that respect. 9 The appellant also seeks an addition to order 3, an order that the second respondent pay the appellant's costs of the trial. It submits that this is necessary to reflect the outcome of the appeal. The second respondent accepts that the costs of cross-claim at the trial should follow the event as established on appeal, but says that that does not mean that the second respondent should be ordered to pay all the appellant's costs of the trial. It points out that the appellant's other costs of the trial are caught by the order for indemnity. 10 In our opinion the only addition which could properly be made to order 3 is that the cross-defendant pay the cross-claimant's costs of the cross-claim, but there is no point in making the order because of the indemnity. We decline to add to order 3. 11 We order that order 5 made on 20 March 2002 be varied by deleting "Respondent" and substituting "Second respondent". This variation could have been made by consent, and we order that the appellant pay the second respondent's costs of the application to amend and add to the orders. ********** 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.