New South Wales Court of Appeal CITATION: Kalls Enterprises Pty Ltd (In Liquidation) & Ors v Baloglow & Anor (No 2) [2007] NSWCA 277 HEARING DATE(S): (on written submissions) JUDGMENT DATE: 10 October 2007 JUDGMENT OF: Giles JA; Ipp JA; Basten JA DECISION: Orders made on 9 August 2007 stand unchanged. Order the appellants pay Mr Kaliaropoulos' costs of the notice of motion filed on 23 August 2007. CATCHWORDS: COSTS - repayment of amount paid into court - no question of principle. Kalls Enterprises Pty Ltd (In liquidation) - First Appellant AA Australian Commercial Laundries Pty Ltd - Second Appellant PARTIES: Christopher Damien Darin (in his capacities as Liquidator of Kalls Enterprises Pty Ltd (In liquidation) and AA Australian Commercial Laundries Pty Ltd (In liquidation) - Third Appellant Theo Baloglow - First Respondent and Cross-Appellant Peter Kaliaropoulos - Second Respondent and Cross-Respondent FILE NUMBER(S): CA 40441/06 A Collins (Solr) - Appellants COUNSEL: C P Locke - First Respondent and Cross-Appellant I R Hazan - Second Respondent and Cross-Respondent Koffels - Appellants SOLICITORS: Oliveri Attorneys - First Respondent and Cross-Appellant Hazan Hollander - Second Respondent and Cross-Respondent LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 1841/99 LOWER COURT JUDICIAL OFFICER: Hamilton J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40441/06 SC 1841/99 GILES JA IPP JA BASTEN JA Wednesday 10 October 2007 KALLS ENTERPRISES PTY LTD (in liquidation) & ORS v BALOGLOW & ANOR (No 2) Judgment 1 THE COURT: Judgment in the appeal and cross-appeal was given on 9 August 2007. The appeal included a challenge to an order that the costs payable by the plaintiffs (the present appellants) to Mr Baloglow include the costs payable by Mr Baloglow to Mr Kaliaropoulos. The appellants' success in the appeal meant that the order that the plaintiffs pay costs to Mr Baloglow was set aside. In the manner described at [204]-[208] of the reasons, an associated question of repayment of $5,000 paid into court by the plaintiffs' litigation funder and ordered to be paid to Mr Kaliaropoulos on account of the costs payable by Mr Baloglow to Mr Kaliaropoulos was left for determination if the appellants exercised liberty reserved to them to apply for an order for repayment. 2 The appellants did apply, by a notice of motion filed on 23 August 2007, and written submissions were received from the appellants and Mr Kaliaropoulos. 3 The reasons identified as the question on which repayment turned whether, if the trial judge had not made the Bullock order, he would or should have made a special costs order involving payment of the $5,000 to Mr Kaliaropoulos. It was said that this Court was not in a position to decide whether a special costs order would or should have been made, but it was observed that, if the judge was moved to make the order for payment of the $5,000 into court, he "must have thought that a special costs order in that amount was a real possibility". 4 The appellants' submissions said nothing about the question identified in the reasons, not even that it was not the correct question. They simply asserted an entitlement to be repaid the $5,000, submitting in the alternative that the $5,000 should be ordered to be applied in satisfaction of appellate costs payable by the appellants to Mr Kaliaropoulos. Mr Kaliaropoulos' submissions provided an account of the circumstances in which the trial judge made the order for payment of the $5,000 into court, and invited the Court to conclude that if the appellants had succeeded at the trial, the trial judge would have ordered that the $5,000 be paid to him. 5 In our opinion, the invitation should be accepted. We come to that opinion with greater comfort when the appellants have not felt able to contest the question identified in the reasons. 6 The orders made on 9 August 2007 will therefore stand unchanged, and we order that the appellants pay Mr Kaliaropoulos' costs of the notice of motion filed on 23 August 2007. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.