ACQ v Cook (No 2); Aircair Moree v Cook (No 2); Cook v Country Energy (No 2); Country Energy v Cook (No 2) [2008] NSWCA 306

New South Wales Court of Appeal

CITATION: ACQ v Cook (No 2); Aircair Moree v Cook (No 2); Cook v Country Energy (No 2); Country Energy v Cook (No 2) [2008] NSWCA 306

HEARING DATE(S): On written submissions

JUDGMENT DATE: 17 November 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Campbell JA at 3

In Appeal 40302/07 (1) ACQ to pay the costs of NorthPower of the appeal. (2) ACQ to pay the costs of Mr Cook of the appeal on an indemnity basis. In Appeal 40303/07 (1) Aircair to pay the costs of NorthPower of the appeal. (2) Aircair to pay the costs of Mr Cook of the appeal on an indemnity basis. In Appeal 40363/07 DECISION: (1) ACQ and Aircair to pay the costs of NorthPower of the appeal, otherwise no order as to costs. In Appeal 40454/07 (1) Aircair and ACQ to pay the costs of NorthPower of the appeal, otherwise no order as to costs. In All Appeals (1) Note that the appeals in matters 40302/07, 40303/07, 40363/07 and 40454/07 were in substance conducted as a single appeal, and direct that any assessment of costs be made accordingly. (2) ACQ and Aircair to pay costs of the submissions relating to orders for costs. (3) Orders for costs in the court below vacated, and in lieu thereof: (a) ACQ and Aircair to pay Mr Cook's costs on the ordinary basis to 17 November 2006, and on the indemnity basis from 17 November 2006. (b) ACQ and Aircair to pay NorthPower's costs.

CATCHWORDS: COSTS – Bullock order – Sanderson order – discretion – principles governing grant of orders – whether reasonable and proper for plaintiff to have sued successful defendant – where joinder of successful defendant by plaintiff occurred at a time when it was already joined to the proceedings by way of cross-claim by the parties against whom costs order is sought – where those parties denied liability – where those parties were sued under statute while the successful defendant was sued in tort