New South Wales Court of Appeal CITATION : Brierly v Biggs & Sons Development P/L & 1 Or [2002] NSWCA 362 FILE NUMBER(S) : CA 40483 of 2002 HEARING DATE(S) : 31/10/02 JUDGMENT DATE : 31 October 2002 Peter Brierly PARTIES : v Biggs & Sons Development Pty Limited & 1 Or JUDGMENT OF : Meagher JA at 1, 15; Hodgson JA at 8; Foster AJA at 13 LOWER COURT JURISDICTION : District Court LOWER COURT DC 419 of 2000 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER : A: M Duncan COUNSEL : 1 R: J Marshall SC & J White 2 R: D Russell SC SOLICITORS : A: Johnstone Robinson R: Phillips Fox CATCHWORDS : Costs - whether respondent entitled to costs of first cross-claim - whether appellant entitled to costs of second cross-claim - appeal allowed. CASES CITED: Australian Securities Commissioner v Aust-Home Investments Limited (1993) 44 FCR 194 Gribbles v Health Insurance Commission (1997) 80 FCR 284 DECISION : 1. Appeal allowed; 2. "No order for costs" order from below set aside; 3. In lieu thereof the orders should be that Biggs & Sons Development Pty Limited pay the costs of Peter Brierly; 4. Summercraft Blinds, Awnings & Security Pty Limited should pay the costs of Biggs including the costs which Biggs has to pay Brierly; 5. Summercraft Blinds to pay the costs of the application and appeal of both Brierly & Biggs & Sons IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40483 of 2002 MEAGHER JA HODGSON JA FOSTER AJA Thursday, 31 October 2002 PETER BRIERLY v BIGGS & SONS DEVELOPMENT PTY LIMITED & 1 Or Judgment 1 MEAGHER JA: In this matter the plaintiff, a Miss McWhirter, brought proceedings for damages which she suffered when she slipped at premises at Lismore in a car space behind some shops. She sued three defendants of whom the second defendant was Summercraft Blinds, Awnings & Security Pty Limited, the second respondent. The second defendant, Summercraft Blinds joined the cross-appellant, Biggs & Sons, who were the landlords of property adjoining the carpark. Summercraft Blinds alleged that water leaking from the property caused the slippery surface upon which the plaintiff fell. Biggs & Sons was joined in September 2001, some five months before the hearing. Biggs in turn joined the second cross-respondent, Peter Brierly, the tenant of their property, by a second cross-claim. The tenant was contractually bound to indemnify the landlord for injuries to third party said to have arisen out of its occupation of the property. 2 The first cross-claim against Biggs & Sons was dismissed at the close of the evidence. The trial at that stage had taken eight days. It is in dispute whether some of the evidence did inculpate Biggs & Sons or Peter Brierly. On one view it did not but there is an argument that on a very generous view there was some evidence against both parties. It does not matter a great deal, in my view, because the first cross-claim was withdrawn and dismissed. At least to put it more accurately an attempt to withdraw it was made and his Honour dismissed it. So was the second cross-claim. 3 Both cross-defendants sought costs. Notwithstanding the usual rule that costs follow the event his Honour Twigg DCJ refused to make such an order. It is not at all clear to me on what basis his Honour declined to make an order. The actual order his Honour did make was "no order for costs". 4 In the present case Biggs & Sons seeks its costs of the first cross-claim and Brierly seeks costs of the second cross-claim. In the circumstances I cannot see any possible reason why both orders sought should not be made. 5 Reluctant as this Court is to make orders interfering with a trial judge's discretionary judgment and obdurate as it is in not entertaining appeals on costs matters, in the present case the two appellants, Brierly and Biggs have both suffered at his Honour's hands what seems to me a major injustice which must be rectified. 6 In my view both appeals should succeed, his Honour's order "no order for costs" should be set aside and in lieu thereof the orders should be that Biggs & Sons Development Pty Limited pay the costs of Peter Brierly and Summercraft Blinds, Awnings & Security Pty Limited should pay the costs of Biggs including the costs which Biggs has to pay Brierly. 7 Gentlemen I think that disposes of the matters below. As far as today's proceedings are concerned in my view Summercraft Blinds ought to pay the costs of both Brierly and Biggs & Sons. 8 HODGSON JA: I agree, I just have a couple of comments to add. Mr Russell SC for Summercraft relied on two Federal Court decisions in support of a submission that the primary judge's decision was one well open to him as a matter of discretion, namely Australian Securities Commissioner v Aust-Home Investments Limited (1993) 44 FCR 194 and Gribbles v Health Insurance Commission (1997) 80 FCR 284. 9 Dealing first with the second of those cases, that was a case where the parties to proceedings settled all aspects of the proceedings except the issue of costs, and asked the judge then to determine the issue of costs. In that situation, one can well understand the judge taking the view that without, determining the merits of the matter, he cannot make an order in favour of one party or the other but leaves each party bearing its own costs. 10 The present case was not such a case. In the present case the moving party in each of two cross-claims sought to withdraw the cross claim after some days of hearing. The cross-defendant to each cross-claim raised no objection to the withdrawal, but sought an order for costs. The cross claims were dismissed. In those circumstances, in my opinion, there was an event which costs should normally follow, in favour of the party against whom the dismissed proceedings were brought. It is different from the situation dealt with in Gribbles. 11 The other case relied on was one where the plaintiff had been successful in obtaining some substantial interlocutory relief, namely the appointment of a receiver, and the receiver had then acted for some time. After a time orders were made discharging that appointment and dismissing the application for appointment, of the receiver. In that case the proceedings could not be said to have totally failed. Relief had been obtained, and there was not a clear event which costs would follow, so again the judge was faced with a situation where it was appropriate to make some assessment as to the reasonableness of bringing the proceedings. In my opinion that was not the case here. 12 So for those reasons, additional to those given by Meagher JA, I agree with the orders he proposes. 13 FOSTER AJA: I agree with what has fallen from my brethren, I have nothing to add. 14 MARSHALL: Your Honours before your Honours rise could it be made clear that the order for costs of the appeal include the costs of the application for leave because at the time leave was granted there was no actual order for costs made. 15 MEAGHER JA: Very well, the order for costs of today's hearing shall include the applications for leave. The Court will now adjourn. ****** 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. 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