Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Silverbrook Research Pty Ltd v Lindley [No 2] [2011] NSWCA 29 Hearing dates: 18 October 2010 Decision date: 14 February 2011 Before: Allsop P at 1, Beazley JA at 9, Hammerschlag J at 10 Decision: (1) Judgment of the District Court be set aside and in lieu thereof: Judgment for the plaintiff in the amount of $53,921.57, taking effect as at 13 November 2009. The defendant pay the plaintiff's costs, excluding costs referable exclusively to the claim under the Trade Practices Act 1974 (Cth) which was abandoned. (2) There be no order for costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: Costs - assessment - interest - whether costs recoverable for claim abandoned - appeal costs - no order as to costs Legislation Cited: Trade Practices Act 1974 (Cth) Category: Consequential orders Parties: Silverbrook Research Pty Ltd (Appellant) Robyn Alice Lindley (Respondent) Representation: Counsel: Mr P J Newall (Appellant) Mr J C Sheller (Respondent) Solicitors: Truman Hoyle Lawyers (Appellant) DGB Lawyers (Respondent) File Number(s): 2010/4756 Decision under appeal Citation: Robyn Alice Lindley v Silverbrook Research Pty Limited [2009] NSWDC 396 Date of Decision: 2009-11-13 00:00:00 Before: Walmsley SC DCJ File Number(s): 5519/08 Judgment 1ALLSOP P: The Court delivered judgment on 17 December 2010, adjourning the matter to be dealt with on the papers for the proper form of the orders, including the orders for costs. 2The parties are not in agreement as to the proper form of the orders. The first disagreement between the parties concerns the assertion by the appellants that the interest on the bonuses should only be upon the net after tax amount of the bonuses. It was submitted that to calculate interest otherwise would over compensate the plaintiff/respondent. I would reject this submission. There was no issue or argument raised in the matter below or appeal as to the financial and tax affairs of Dr Lindley. The tax treatment of these amounts is a matter between the Commissioner of Taxation and the respondent. The calculation of the matter should be done as per the submissions of the respondent. Those submissions provide for interest on the respective sums ($30,000, $24,000 and $20,000) from the mid-point of the corresponding year of the contract until the date of the payment of the ex gratia amount on 15 August 2008. From this amount the ex gratia payment of $48,165.13 is deducted. There is then added interest on the amount of $25,834.87 (being the balance of the $74,000 after the deduction of the ex gratia payment of $48,165.13). This yields a figure of $53,921.57 as at 13 November 2009. 3As to costs, the appellant submitted that the respondent should pay 50 per cent of its costs of the appeal and that the costs of the trial should be varied by excluding the plaintiff's claim to costs for the Trade Practices Act claim. 4The respondent, on the other hand, says that it won thirteen of fifteen grounds of the appeal (assuming that it lost the issue as to the Trade Practices Act claim at first instance) and that the appellant should pay 50 per cent of the costs of the respondent of the appeal. 5The first costs issue concerns the costs below of the Trade Practices Act claim. There was an oversight in the production of the headnote of the judgment. The headnote indicated agreement of myself and Beazley JA to the suggestion of Hammerschlag J in [77] of the reasons that the costs below should exclude the Trade Practices Act claim. As was made plain from the note under the headnote, the headnote is not a part of the reasons of the Court. In an earlier draft circulated amongst the judges there had been agreement on this issue with Hammerschlag J. I remain in agreement with Hammerschlag J. No submission to the contrary was put by Dr Lindley. 6As to the costs of appeal, Hammerschlag J's provisional view expressed in [77] has some force. It roughly reflects the relative success of the parties on appeal. There were two substantive issues: the treatment of the matter by the primary judge to award a sum for the lost chance of the bonus and the ex gratia payment. Though divided up into different headings in the notice of appeal this was the bi-partite structure of the appeal. The appellant lost the former and won the latter substantive issues. 7Another view might be that the appellant won some part of the case and therefore should have some part of the costs. Another view is that the respondent won the appeal in substance and should have some part of its costs. Overall, I think a fair result is that there should be no order for costs of the appeal. 8The orders that I would make therefore are as follows: (1)Judgment of the District Court be set aside and in lieu thereof: (a) Judgment for the plaintiff in the amount of $53,921.57, taking effect as at 13 November 2009. (b) The defendant pay the plaintiff's costs, excluding costs referable exclusively to the claim under the Trade Practices Act 1974 (Cth) which was abandoned. (2)There be no order for costs of the appeal. 9BEAZLEY JA: I agree with Allsop P. 10HAMMERSCHLAG J: I agree with Allsop P. ********** 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. Decision last updated: 01 March 2011