BOSTIK AUSTRALIA PTY LTD v LIDDIARD (NO 2) [2009] NSWCA 304

New South Wales Court of Appeal

CITATION: BOSTIK AUSTRALIA PTY LTD v LIDDIARD (NO 2) [2009] NSWCA 304

HEARING DATE(S): On the papers

JUDGMENT DATE: 24 September 2009

JUDGMENT OF: Beazley JA at 1; Ipp JA at 1; Basten JA at 1

(1) Vary order (3) made on 26 June 2009 so that it provides:

(3) Order the first respondent (Mr Liddiard) to pay 40% of the appellant's costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.

(2) Otherwise dismiss the notice of motion of the first respondent (Mr Liddiard) filed on 9 July 2009.

(3) Order the appellant (Bostik Australia Pty Ltd) to pay 50% of the first respondent's costs of his motion.

DECISION: (4) Vary the orders made on 26 June 2009 by adding to order (2) a new paragraph (c) and making consequential amendments to paragraphs (a) and (b), so that order (2) now reads:

(2) In lieu thereof: (a) enter judgment for the second defendant against the plaintiff; (b) order the plaintiff to pay the second defendant's costs of the proceedings other than those attributable to the cross-claims, and (c) dismiss the cross-claims of the first and second defendants, with no order as to costs of the cross-claims.

(5) Otherwise dismiss the notice of motion filed by the appellant on 10 July 2009.

(6) Order that the appellant pay the costs of the second respondent (Brolton) of the appellant's motion.

CATCHWORDS: COSTS – costs of appeal – Sanderson Order – two respondents to appeal – both respondents necessarily joined – whether any basis upon which unsuccessful respondent could be found responsible for the joinder of other respondent - COSTS – costs of trial – Sanderson Order – plaintiff alerted to possibility of proceedings against successful defendant through conduct of unsuccessful defendant – enquiry made as to whether plaintiff contemplating proceedings against successful defendant – denial of liability – provision of information to plaintiff – whether conduct constituted sufficient inducement or was otherwise unreasonable - COSTS – two issues on appeal – issues severable – respondent successful on one issue – respondent ordered to pay appellant's costs of appeal – whether order for costs should reflect respondent's partial success