Rolfe v. Katunga Lucerne Mill Pty.Ltd. & Anor. [2005] NSWCA 473

New South Wales Court of Appeal

CITATION: Rolfe v. Katunga Lucerne Mill Pty.Ltd. & Anor. [2005] NSWCA 473

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

JUDGMENT DATE: 22 December 2005

JUDGMENT OF: Hodgson JA at 1; Santow JA at 2; McClellan CJ at CL at 10

DECISION: See par.9 of judgment

CATCHWORDS: PROCEDURE - COSTS - Whether costs order made in disposing of appeal should be altered.

Mark Rolfe - appellant PARTIES: Katunga Lucerne Mill Pty. Ltd. - 1st respondent Robank Farm Supplies Pty. Ltd. - 2nd respondent

FILE NUMBER(S): CA 40509/04

B. Gross QC with T. Boyd for appellant COUNSEL: S.G. Campbell SC with A.J. Bowen for respondents

Leitch Hasson Dent, Sydney for appellant SOLICITORS: Henry Davis York, Sydney for respondents

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC1495/03

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40509/04 DC 1495/03

HODGSON JA SANTOW JA McCLELLAN CJ at CL

Thursday 22 December 2005 Mark ROLFE v KATUNGA LUCERNE MILL PTY LIMITED & 1 Ors Judgment 1 HODGSON JA: I agree with Santow JA. 2 SANTOW JA: On 28 July 2005 judgment was delivered in the successful appeal brought by Mr Rolfe, successful that is to say in only one of three bases of appeal. Essentially, the result was that the appellant succeeded in a claim based upon merchantable quality of contaminated chaff supplied by the respondents but failed on what had been a major plank of the appellant's appeal, namely tort liability. At [124] of the judgment I stated with the agreement of Hodgson JA and McClellan AJA: 124 As to costs, I would not award the appellant all his costs, given that the appellant should have focussed on the only tenable argument he had, namely merchantable quality, and not strayed otherwise into contract and tort liability. 3 The appellant seeks a variation of the costs order by way of review, there having been no argument on costs. The matter has proceeded by way of written submissions. 4 Essentially, the appellant's argument is set out at paragraphs 4 to 9 of its submissions: 4. The appeal in this matter was from a decision of Judge Hughes in the District Court. When the hearing commenced before Judge Hughes there were nine separate matters listed to be heard concurrently (Black Book Vol. 1 p1). The appellant in these proceedings is the plaintiff in the first matter listed before his Honour. The plaintiffs in the other cases are the owners of the horses which were trained by the appellant. The owners each brought separate proceedings in respect of the injuries to their horses. In all cases the defendants are the respondents to the appeal.