TINYOW v LEE & Anor [2006] NSWCA 247

New South Wales Court of Appeal

CITATION: TINYOW v LEE & Anor [2006] NSWCA 247

JUDGMENT DATE: 4 September 2006

JUDGMENT OF: Handley JA at 1; Santow JA at 2; Ipp JA at 15

DECISION: Application for indemnity costs dismissed with costs.

CATCHWORDS: COSTS – Indemnity costs – Calderbank letter.

Uniform Civil Procedure Act s98 LEGISLATION CITED: Uniform Civil Procedure Rules Pt 20; Pt 42 Evidence Act 1995 s131(2)(h)

ADSE (Holdings) Pty Ltd v InterTAN Inc (2004) 51 ACSR 555 Calderbank v Calderbank [1975] 3 All ER 333 CASES CITED: Ettinghausen v Australian Consolidated Press Limited (1995) 38 NSWLR 404 Manly Council v Byrne (No 2) [2004] NSWCA 227 MT Associates Pty Ltd v Aqua-Max Pty Ltd [2000] VSC 163

Walter TINYOW (Appellant) PARTIES: Thomas Ping Kwan LEE (First Respondent) Willie Man Tak WONG (Second Respondent)

FILE NUMBER(S): CA 41126/04

Written submissions: COUNSEL: K E LEOTTA (Appellant) A J O'BRIEN (Respondents)

SOLICITORS: Raymond Lee & Co (Appellant) Pigott Stinson Ratner Thom (Respondents)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41126/04 DC 9051/01 DC 9050/01

HANDLEY JA SANTOW JA IPP JA

4 SEPTEMBER 2006 Walter TINYOW v Thomas Ping Kwan LEE and Another Judgment 1 HANDLEY JA: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION The appellant, Walter Tinyow, was successful in his appeal; see judgment of 13 April 2006. He obtained judgment in sums specified against his former co-shareholders Thomas Lee ($55,000) and Willie Wong ($65,000), respectively first and second respondents. In regard to credit given in calculating these amounts, note para [51] of the judgment. Cost orders were made in favour of Mr Tinyow in respect of both the appeal and before the District Court on a party-party basis. 3 Following these orders, the appellant applied for costs on an indemnity basis from 10 May 2004 pursuant to s98 of the Uniform Civil Procedure Act ("UCPA") and Pt 42 of the Uniform Civil Procedure Rules ("UCPR"). The appellant relies on what it describes as a Calderbank Letter (see below) of 10 May 2004. 4 Written submissions were received from both parties following the hearing, so enabling that issue to be determined without further hearing.