CHAINA v ALVARO HOMES PTY LTD [2008] NSWCA 353

New South Wales Court of Appeal

CITATION: CHAINA v ALVARO HOMES PTY LTD [2008] NSWCA 353

HEARING DATE(S): 24 and 25 September 2008

JUDGMENT DATE: 18 December 2008

JUDGMENT OF: Giles JA at 1; Basten JA at 15; Young CJ in Eq at 118

(1) Grant the applicants on the summons leave to appeal with respect to the judgments and orders made in the District Court on 8 February, 12 February and 15 February 2008.

(2) Order the applicants to file the amended draft notice of appeal of 19 September 2008 within seven days. DECISION: (3) Dismiss the appeal.

(4) Order the appellants to pay the respondents' costs of the proceedings in this Court.

CATCHWORDS: COSTS – indemnity basis – standing to challenge costs order – amount of payment due under contract in excess of offer – whether claims unreasonable and unsupported by evidence – whether costs proportionate to importance and complexity of case – Civil Procedure Act 2005 (NSW), s 60 - EVIDENCE – conference of experts – involvement of party in conference – supply to experts of information not agreed in advance - PROCEDURAL FAIRNESS – civil proceedings – need to demonstrate loss of opportunity – onus on complainant to establish facts - PROCEDURAL FAIRNESS – civil proceedings – trial judge's reliance on demeanour of party in courtroom – no notice to parties – whether legal representatives in position to observe party's behaviour – whether refusal to grant adjournment constituted procedural unfairness – whether alleged unfairness affected outcome – whether extent of impact can be assessed on appeal – comparison between failure to accord procedural fairness in administrative law, in civil proceedings and in criminal proceedings – degrees of unfairness