Cosmos E-C Commerce Pty. Ltd. v. Sue Bidwell & Associates Pty. Ltd. (No.2) [2005] NSWCA 238

New South Wales Court of Appeal

CITATION: Cosmos E-C Commerce Pty. Ltd. v. Sue Bidwell & Associates Pty. Ltd. (No.2) [2005] NSWCA 238

HEARING DATE(S): Matter dealt with on written submissions in Chambers

JUDGMENT DATE: 14 July 2005

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 29

DECISION: 1. Order 4 made on 18 May 2005 vacated, and in lieu thereof "Set aside the order that the proceedings be set down to be heard on 30 July 2004 on the question of damages and the orders that the claimant and opponent file and serve evidence in relation to question of damages". 2. No order as to the costs of the post-judgment submissions.

CATCHWORDS: PROCEDURE - COSTS - Whether affected by Calderbank letters - Whether otherwise questions of costs should be re-opened.

Cosmos E-C Commerce Pty. Ltd. - claimant PARTIES: Sue Bidwell & Associates Pty. Ltd - respondent

FILE NUMBER(S): CA 40379/04

Mark J. Cohen - claimant COUNSEL: Janet Pentelow - opponent

Watson Mangioni, Sydney for claimant SOLICITORS: Muggletons, Westgate for opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC2590/03

LOWER COURT JUDICIAL OFFICER: Cooper DCJ, Rolfe DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40379/04 DC 2590/03

HODGSON JA IPP JA

Thursday 14 July 2005 COSMOS E-C COMMERCE PTY. LTD V. SUE BIDWELL & ASSOCIATES PTY. LTD. (NO.2) Judgment 1 HODGSON JA: On 18 May 2005, the Court gave judgment on the appeal in this matter, and made the following orders: 1. Leave granted to the opponent to appeal; Notice of Appeal to be filed within seven days; 2. The appeal is allowed; 3. The following orders of Cooper ADCJ are set aside: (a) the order striking out the claimant's grounds of defence; (b) the order giving summary judgment for the opponent; (c) the order setting the proceedings down for the assessment of damages; (d) the orders as to costs on the opponent's notice of motion. 4. Set aside the orders of Rolfe DCJ; 5. Order the opponent to pay the claimant's costs of: (a) the application for leave and the appeal, except in relation to the abandonment of any appeal against the orders rejecting leave to the opponent to file amended grounds of defence; (b) the opponent's notice of motion in the court below. 6. Order the claimant to pay the costs of the opponent thrown away by reason of the abandonment of any appeal against the order rejecting leave to the opponent to file amended grounds of defence. 7. The opponent is to have a certificate under the Suitors Fund Act if so qualified. 2 However, the Court also gave leave for further submissions in relation to costs, and it has now received further submissions from the claimant (Cosmos) and the opponent (Bidwell). 3 Those submissions relied on an exchange of letters in September 2004. 4 On 10 September 2004, the solicitors for Cosmos wrote as follows to the solicitors for Bidwell: We refer to the orders of the NSW Supreme Court of Appeal on 28 July 2004 by which our client was successful in its application for a stay of the orders of the District Court of 14 May 2004.