New South Wales Court of Appeal CITATION: Gough & Gilmour Holdings Pty Ltd v Peter Campbell Earthmoving Pty Ltd (No 2) [2009] NSWCA 133 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 16 February 2009 JUDGMENT DATE: 3 June 2009 JUDGMENT OF: McColl JA at 1; Macfarlan JA at 2; Sackville AJA at 3 1. Appeal allowed in part. 2. Cross appeal allowed in part. 3. The judgment entered on 3 September 2008 in favour of the respondent by James J in the sum of $2,129,881.65, inclusive of interest, be set aside. 4. The matter be referred back to the Primary Judge for determination of: DECISION: (a) whether there has been breach of the "Minimum Hours Warranty" in each of the FOCUS Contracts sued on in the cross claim as found in paras 73 and 76 of the Judgment of the Court delivered on 11 March 2009; (b) if there has been a breach, for assessment of damages in respect of such breach; (c) paragraph 15(b) of the respondent's amended defence to cross claim dated 6 November 2006. 5. The parties bear their own costs of the appeal. 6. The costs of the further hearing and the earlier proceedings before the Primary Judge be reserved for his Honour's determination at the conclusion of the proceedings before him. CATEGORY: Consequential orders CASES CITED: Gough & Gilmour Holdings Pty Ltd v Peter Campbell Earthmoving Pty Ltd [2009] NSWCA 37 PARTIES: Gough & Gilmour Holdings Pty Ltd (Appellant/Cross Respondent) Peter Campbell Earthmoving Pty Ltd (Respondent/Cross Appellant) FILE NUMBER(S): CA 40223/07 COUNSEL: F Corsaro SC/D F Villa (Appellant/Cross Respondent) N A Cotman SC/I L Griscti (Respondent/Cross Appellant) SOLICITORS: Kennedys (Appellant/Cross Respondent) Coleman & Greig Solicitors (Respondent/Cross Appellant) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20491/00 LOWER COURT JUDICIAL OFFICER: James J LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 172 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40223 of 2007 McCOLL JA MACFARLAN JA SACKVILLE AJA Wednesday 3 June 2009 GOUGH & GILMOUR HOLDINGS PTY LTD v PETER CAMPBELL EARTHMOVING PTY LTD (No 2) Judgment 1 McCOLL JA: I agree with Sackville AJA. 2 MACFARLAN JA: I agree with Sackville AJA 3 SACKVILLE AJA: Judgment was delivered in this appeal on 11 March 2009: Gough & Gilmour Holdings Pty Ltd v Peter Campbell Earthmoving Pty Ltd [2009] NSWCA 37 ("Judgment"). The parties were directed to file written submissions in relation to the form of orders and costs in accordance with a specified timetable. The parties have done so. 4 The respondent ("PCE") submitted that the following orders are appropriate, having regard to the Judgment: 1. Appeal allowed in part. 2. Cross appeal allowed in part. 3. The judgment entered on 3 September 2008 in favour of the respondent by James J in the sum of $2,129,881.65, inclusive of interest, be set aside. 4. The matter be referred back to the trial Judge for determination of: (a) whether there has been breach of the "Minimum Hours Warranty" in each of the FOCUS Contracts sued on in the cross claim; (b) if there has been a breach, for assessment of damages in respect of such breach; (c) paragraph 15(b) of its amended defence to cross claim dated 6 November 2006. The appellant (" G&G ") agreed that these orders were appropriate to give effect to the Judgment. 5 Since the parties are agreed as to the form of orders, the orders proposed by PCE should be made, subject to two qualifications. First, for the sake of completeness the words "as found in paras 73 and 76 of the Judgment of the Court delivered on 11 March 2009" should be added to Order 4(a). Secondly, "its" in Order 4(c) should be replaced with "the respondent's". 6 The Judgment recorded (at [105]) the Court's "present view" that each party should bear its own costs of the appeal. Neither party disputed that the appropriate order is as follows: 5. The parties to bear their own costs of the appeal. 7 The only dispute concerns the costs of the proceedings remitted to the primary Judge. PCE submitted that G&G should bear the costs of any further hearing, insofar as the hearing is required to determine the issues arising from par 15(b) of G&G's defence to cross-claim. PCE contended that this is the appropriate order since the further hearing on these issues was necessitated by G&G's failure to make proper submissions at the relevant time, being the time of the second hearing before the primary Judge (see Judgment, at [95]-[99]). 8 G&G resisted PCE's submission on the grounds that the issues arising from par 15(b) of G&G's defence to cross-claim may not generate any additional costs at the further hearing and that, in any event, those issues will be inextricably bound up with the other issues that the primary Judge will have to determine. 9 In my view, the better course is for the primary Judge to determine all questions of costs in the proceedings before him, including the costs of the further hearing. His Honour is well placed to determine whether the costs orders should reflect an allowance for G&G's failure at the second hearing to develop arguments on the issues arising from par 15(b) of its defence to cross-claim. Rather than this Court making an order that deals with one aspect of the costs of the further hearing, the primary Judge should address all questions of costs relating to the proceedings before him. 10 Accordingly, the only orders as to costs should be as follows: 6. The costs of the further hearing and the earlier proceedings before the Primary Judge be reserved for his Honour's determination at the conclusion of the proceedings before him. 11 I propose, therefore, that the Court should make the following orders: 1. Appeal allowed in part. 2. Cross appeal allowed in part. 3. The judgment entered on 3 September 2008 in favour of the respondent by James J in the sum of $2,129,881.65, inclusive of interest, be set aside. 4. The matter be referred back to the Primary Judge for determination of: (a) whether there has been breach of the " Minimum Hours Warranty " in each of the FOCUS Contracts sued on in the cross claim as found in paras 73 and 76 of the Judgment of the Court delivered on 11 March 2009; (b) if there has been a breach, for assessment of damages in respect of such breach; (c) paragraph 15(b) of the appellant's amended defence to cross claim dated 6 November 2006. 5. The parties bear their own costs of the appeal. 6. The costs of the further hearing and the earlier proceedings before the Primary Judge be reserved for his Honour's determination at the conclusion of the proceedings before him. ********** 22/09/2009 - amended text "paragraph 15(b) of the appellant's" to "paragraph 15(b) of the respondent's" - Paragraph(s) 4 (c) of paragraph 11 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.