AUSTRALIAWIDE AIRLINES LTD v ASPIRION PTY LTD [2006] NSWCA 365

New South Wales Court of Appeal

CITATION: AUSTRALIAWIDE AIRLINES LTD v ASPIRION PTY LTD [2006] NSWCA 365

HEARING DATE(S): 13/10/2006

JUDGMENT DATE: 15 December 2006

JUDGMENT OF: McColl JA at 1; Bryson JA at 2; Basten JA at 60

DECISION: (1) Appeal allowed with costs; (2) Set aside the order for costs made by McLaughlin AsJ on 22 September 2005 and in lieu thereof order that the plaintiff pay the defendant's costs of the proceedings including the costs of the Interlocutory Process.

CATCHWORDS: COSTS – proceedings withdrawn or discontinued – respondent IAS contracted to do work to reduce charges incurred by appellant REX's airline business for payments calculated by reference to costs savings – parties disputed amount payable – inconclusive reference to mediation under contractual terms – communications proceeded between a Director of IAS and Financial Controller of REX towards establishing whether there was any liability and its amount – concurrently another Director of IAS sent a letter of demand to Directors of REX, followed by Statutory Demand, to which REX did not respond – concurrent of communication were independent of each other – IAS then brought Winding-Up proceedings, REX produced full and clear accountancy evidence of solvency and applied for leave to oppose under Corporations Act s.459S – IAS consented to dismissal of Winding-up proceedings and parties argued costs before McLaughlin AsJ who ordered REX to pay IAS' costs up to date of filing REX's evidence of solvency and each party to pay own costs thereafter – on appeal, costs order set aside on ground of misdirection on UCPR 42.20 and other errors – on re-exercise by Court of Appeal, IAS ordered to pay REX's costs. Consideration of operation of UCPR 42.20 with observations of McHugh J in Ex parte Lai Qin 186 CLR 622 at 625.