SMITS & ORS v ROACH & ORS [NO 2] [2004] NSWCA 463

New South Wales Court of Appeal

CITATION : SMITS & ORS v ROACH & ORS [NO 2] [2004] NSWCA 463 HEARING DATE(S) : 24 May 2004, 25 May 2004, 26 May 2004 JUDGMENT DATE : 17 December 2004

JUDGMENT OF : Sheller JA at 1; Ipp JA at 23; Bryson JA at 24 DECISION : Additional orders as per paragraph 21

CATCHWORDS : COSTS - Additional orders - consideration of costs in relation to grounds of appeal ultimately not relied upon LEGISLATION CITED : Suitors' Fund Act 1951 CASES CITED : N/A Leonardus Geradus Smits - First Appellant John Anthony Leslie - Second Aappellant Plantoy Pty Ltd - Third Appellant PARTIES : Walter Edward Roach - First Respondent Valerie Anne Roach - Second Respondent Winnote Pty Ltd - Third Respondent Sydtech Pty Ltd - Fourth Respondent FILE NUMBER(S) : CA 40753/02 COUNSEL : J M Ireland QC - Appellants R M Smith SC/T G R Parker - Respondents SOLICITORS : In person - Appellants Maurice Blackburn Cashman - Respondents

LOWER COURT Supreme Court JURISDICTION : LOWER COURT McClellan J FILE NUMBER(S) : LOWER COURT 50099/99 JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40753/02 SC 50099/99

SHELLER JA IPP JA BRYSON JA

Friday, 17 December 2004 SMITS & ORS v ROACH & ORS [NO 2] Judgment 1 SHELLER JA: On 15 July 2004, the Court delivered judgment in this appeal brought by the plaintiffs, Leonardus Gerardus Smits, John Anthony Leslie (the solicitors) and Plantoy Pty Ltd (Plantoy) from the whole of the decision made by McClellan J on 6 August 2002. The Court set aside orders 1 – 4 made by McClellan J and in lieu thereof dismissed the proceedings against two of the defendants, Walter Edward Roach and Valerie Ann Roach. However, the appeal against the defendants and third and fourth respondents, Sydtech Pty Ltd and Winnote Pty Ltd (the Roach companies), succeeded in part. The Court made the following orders: 1. Appeal allowed; 2. Set aside orders 1-4 made by McClellan J on 6 August 2002; 3. In lieu thereof (a) Dismiss the proceedings against Mr and Mrs Roach; (b) The appellants within fourteen days to bring in short minutes of orders for specific performance by the Roach companies of the agreement made on or about 16 September 1999 (the Ten Point Plan); 4. The appellants to pay Mr and Mrs Roach's costs of the proceedings and of this appeal on a party and party basis. 5. The Roach companies to pay one-half of the appellants' costs of the proceedings before McClellan J and of this appeal but in respect of the costs of this appeal to have a certificate under the Suitors' Fund Act 1951 if so entitled.