Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245 Hearing dates: On the papers Decision date: 23 August 2011 Before: Bathurst CJ at 1; Basten JA at 2; Young JA at 14 Decision: (1) Allow the appeal and set aside orders 8, 10 and 11 made on 31 May 2010 in the Equity Division, together with: (a) order 2, as against the appellant, to the extent that it made the orders set out in paragraph 1 of the plaintiff's short minutes of order; and (b) order 9, to the extent that it made the orders set out in paragraphs 4(a) and 5(a) of the short minutes of order "A". (2) In place of the orders set aside, as between the appellant and the first respondent: (a) give judgment for the appellant on the first respondent's amended summons; (b) order that the first respondent pay the appellant's costs in the Court below in respect of the claims made by the first respondent in its amended summons, including the costs of those claims in the proceedings before the referee; (c) subject to (d), order the first respondent to pay the appellant's costs of the appeal; (d) order the appellant to pay the first respondent's costs of and incidental to the finalisation of the orders in this Court. (3) In place of the orders set aside, as between the appellant and the second respondent: (a) give judgment for the appellant on the first cross-claim brought by the second respondent and order the second respondent to pay the appellant's costs thereof; (b) give judgment for the second respondent on the second cross-claim brought by the appellant, with no order as to costs; (c) order the second respondent to pay the appellant's costs of the appeal in respect of the first cross-claim brought by the second respondent, on the ordinary basis up until 15 February 2011, and thereafter as a submitting party. (4) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW), unless disentitled pursuant to s 6(7) thereof. [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 - of appeal - exception to the general rule that costs follow the event - omission to address the orders adequately