LUXOTTICA RETAIL AUSTRALIA PTY LTD v GRANT [2009] NSWCA 378

New South Wales Court of Appeal

CITATION: LUXOTTICA RETAIL AUSTRALIA PTY LTD v GRANT [2009] NSWCA 378

HEARING DATE(S): 23 November 2009

JUDGMENT DATE: 23 November 2009

JUDGMENT OF: McColl JA at 1; Basten JA at 1

DECISION: (1) Dismiss the application for leave to appeal against the costs order made by White J on 31 July 2009. (2) Order that the applicant pay the respondents' costs of the application in this Court.

CATCHWORDS: COSTS – application for leave to appeal – discretionary costs order – no issue of principle – offer of settlement made by defendant prior to hearing – offer rejected – applicant enjoyed nominal success at trial but failed on single substantive issue litigated – plaintiff ordered to pay defendants' costs following offer – whether basis for interfering with exercise of discretion

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.1

CATEGORY: Principal judgment

Fordyce v Fordham [2006] NSWCA 274; 67 NSWLR 497 Luxottica Retail Australia Pty Ltd v Grant [2009] NSWSC 126 CASES CITED: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 Muhibbah Engineering (M) BHD v Trust Co Ltd [2009] NSWCA 205 Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386

Luxottica Retail Australia Pty Ltd - Applicant PARTIES: Janet Ruth Grant - First Respondent Andrew Milne Grant - Second Respondent Specsavers Pty Ltd - Third Respondent

FILE NUMBER(S): CA 40306/09

COUNSEL: M J Leeming SC/J K Taylor - Applicant R Cobden SC - First Respondent