Grygiel v Baine & Ors [No. 2] [2005] NSWCA 434

New South Wales Court of Appeal

CITATION: Grygiel v Baine & Ors [No. 2] [2005] NSWCA 434

HEARING DATE(S): 19 May 2005

JUDGMENT DATE: 9 December 2005

JUDGMENT OF: Mason P at 1; Bryson JA at 2; Basten JA at 3

DECISION: (1) Motion by Mr Grygiel to vary the orders made by the Court on 29 June 2005 with respect to costs be dismissed with costs; (2) Grant certificates under the Suitor's Fund Act to Mr Baine and to Carroll & O'Dea in relation to -; (i) the proceedings in the Common Law Division no. 30088 of 2003; and; (ii) this appeal.

CATCHWORDS: Costs - whether orders in final judgment should be varied under the slip rule - whether court failed to 'invite' the parties to make a submission on costs - effect of failure by counsel to address on costs at the hearing

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) LEGISLATION CITED: Home Building Act 1989 (NSW) Suitors' Fund Act 1951 (NSW)

Australian Postal Commission v Dao [No. 2] (1986) 6 NSWLR 497 Grygiel v Baine & Ors [2005] NSWCA 218 CASES CITED: Krslovic Homes Pty Ltd v Sparkes [2004] NSWSC 374 Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors [1999] NSWCA 335

Christopher Andrew Grygiel (Claimant) Anthony J Baine & Janice Wiley (First Opponents) PARTIES: Albion Design and Construction Pty Ltd (Second Opponent) Carroll & O'Dea, Solicitors and Attorneys (Third Opponents)

FILE NUMBER(S): CA 40673/04

J Simpkins SC, V Zipser (Claimant) COUNSEL: E Olsson SC (First Opponents) R Colquhous (Third Opponents)

The Builders' Lawyer (Claimant) SOLICITORS: Massey Bailey (First Opponents) Carroll & O'Dea (Third Opponents)