New South Wales Court of Appeal CITATION: Gerard Cassegrain & Co Pty Limited v Cassegrain [2008] NSWCA 274 HEARING DATE(S): 14 October 2008 JUDGMENT DATE: 14 October 2008 JUDGMENT OF: Hodgson JA at [1], [10]; Macfarlan JA at [9] EX TEMPORE JUDGMENT DATE: 14 October 2008 DECISION: Leave to appeal refused with costs. CATCHWORDS: PROCEDURE – COSTS – Preliminary application for discovery – Order for costs against respondent to application – Whether error shown. CATEGORY: Principal judgment PARTIES: GERARD CASSEGRAIN & CO PTY LIMITED (ACN 000 342 174) (Applicant) Denis CASSEGRAIN (Respondent) FILE NUMBER(S): CA 40112/08 COUNSEL: C J BEVAN (Applicant) G B COLYER (Respondent) SOLICITORS: Evangelos Patakas & Associates (Applicant) McCabe Terrill Lawyers (Respondent) LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC4640/06 LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ LOWER COURT DATE OF DECISION: 18 September 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40112/08 HODGSON JA MACFARLAN JA TUESDAY 14 OCTOBER 2008 GERARD CASSEGRAIN & CO PTY LIMITED (ACN 000 342 174) v Denis CASSEGRAIN Judgment 1 HODGSON JA: In this application there are a number of matters which may possibly have attracted leave to appeal. 2 One is the question of the appropriate approach to be taken to costs in preliminary applications for discovery. However, this is a case where the conflict was in substance between disputing parties, where substantive litigation, although not exactly between these parties, is to proceed; and in my view the case was one that could appropriately have been treated by the associate judge as ordinary adversary litigation. 3 It has been put that it was not appropriate to award costs against the applicant, because the applicant was not opposing the order sought. The associate judge made the assessment that in substance there was opposition, and that in substance it was the respondent, that is the applicant before the associate judge, who was successful; and in my view no sufficient ground is made out to suggest there was an error in that respect that would attract appellate intervention. 4 It has been put that the associate judge was wrong in ordering payment of all costs of the proceedings to the date of his order, when what was in issue was the costs of a particular half day's hearing. 5 In my view, the reasons given by the associate judge did show a basis for making an order in respect of all costs up to the date of his order, particularly in circumstances where there had been considerable delay by the applicant before us in complying with orders made, and in bringing its application in respect of the costs of complying with the orders. 6 It was put that error was shown because there were some aspects of the argument about costs on which the applicant before this court was successful. However, that is a matter that does not necessarily detract from the making of a general order for costs of the proceedings in favour of the party considered to have been substantially successful in the proceedings. 7 Finally, it was put that there was error in giving leave for costs to be assessed forthwith, again in circumstances where there had been considerable delay by the applicant before this court in complying with orders, and in bringing its application for costs of compliance, and where it appears there was no indication as to when these things would happen. In my view there is no substantial chance that this would attract appellant intervention. 8 For those reasons, in my opinion a sufficient case is not made out for the grant of leave to appeal, and I would propose that leave to appeal be refused. 9 MACFARLAN JA: I agree with the presiding judge. 10 HODGSON JA: The order of the court is: leave to appeal refused with costs. oOo 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.