Council of the City of Liverpool v Turano [No 2] [2009] NSWCA 176

New South Wales Court of Appeal

CITATION: Council of the City of Liverpool v Turano [No 2] [2009] NSWCA 176

HEARING DATE(S): On the papers.

JUDGMENT DATE: 2 July 2009

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 1; McColl JA at 1

DECISION: 1. Sydney Water to pay Mrs Turano's costs of the liability hearing and the appeal (including the leave application) insofar as those costs were incurred in her prosecution of her claim against it; 2. Mrs Turano to pay the Council's costs of the liability hearing and the appeal (including the leave application) insofar as those costs were incurred in her prosecution of her claim against it; 3. The Council and Sydney Water to pay each other's costs of their respective cross-claims; 4. Mrs Turano to have a certificate under the Suitors' Fund Act 1951 in respect of her liability for the Council's costs of the appeal (including the leave application).

CATCHWORDS: PROCEDURE – costs – alternative claims against two defendants – action succeeding against one defendant only – Bullock and Sanderson orders – when applicable - PROCEDURE – costs – alternative claims against two defendants – action succeeding against one defendant only – where unsuccessful defendant asserted successful defendant liable on plaintiff's claim – whether portion of plaintiff's costs should be borne by unsuccessful defendant in absence of a Sanderson or Bullock order – requirement for conduct making it fair to impose liability - PROCEDURE – costs – application for costs on indemnity basis – refusal of Calderbank offer – whether Calderbank offer genuine compromise or invited capitulation

Civil Procedure Act 2005 (NSW) LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Suitors' Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW)