Fillipou v Coates Hire Operations Pty Limited [2011] NSWSC 986

Supreme Court New South Wales

Medium Neutral Citation: Fillipou v Coates Hire Operations Pty Limited [2011] NSWSC 986 Hearing dates: 18 August 2011 Decision date: 31 August 2011 Before: Johnson J Decision: An extension of time is granted to Mr Fillipou to seek leave to appeal to this Court against the costs order of 5 November 2010. Leave is granted to appeal from the costs order of 5 November 2010 and the costs order made on 5 November 2010 is set aside. Leave is refused for Mr Fillipou to appeal against the interlocutory judgment and order on 13 December 2010. The parties will be heard as to the terms of orders to be made concerning costs of the Local Court hearing on 5 November 2010 and costs of the appeal to this Court. Catchwords: APPEAL - Local Court - civil claim - verdict for Defendant after hearing - Defendant seeks order for costs - refusal to order costs - Defendant later applies to Local Court to vary costs order - Magistrate holds is functus officio - whether leave to appeal ought be granted under s.40 Local Court Act 2007 - error in refusal to order costs - no error in holding was functus officio - desirability of use of gross sum costs orders for Local Court costs and appeal costs Legislation Cited: Local Court Act 2007 Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Hancock v Arnold (No. 2) [2009] NSWCA 19 Gee v Burger (No. 2) [2009] NSWSC 1152 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Williams v Lewer [1974] 2 NSWLR 91 Hastings Point Progress Association Inc v Tweed Shire Council (No. 3) [2010] NSWCA 39 Waterman v Gerling Australia Insurance Co Pty Limited (No. 2) [2005] NSWSC 1111 Ohn v Walton (1995) 36 NSWLR 77 All Plastics Engineering Pty Limited v Dornah Ltd [2006] NSWCA 33 Yavuz v Noaman [2001] NSWCA 449 House v The King [1936] HCA 40; 55 CLR 499 Gorczynski v Holden [2010] NSWSC 992 Pacific Asia Express Pty Limited v Renegade Gas Pty Limited [2010] NSWSC 1188 Pool Data Systems Pty Limited v Bayliss [2011] NSWSC 224 Moloney v Collins [2011] NSWSC 628 Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Bostik Australia Pty Limited v Liddiard (No. 2) [2009] NSWCA 304 Hawkesbury District Health Service Limited v Chaker (No. 2) [2011] NSWCA 30 Category: Principal judgment Parties: Phillip Fillipou (Plaintiff) Coates Hire Operations Pty Limited (Defendant) Representation: Mr D Neggo (Plaintiff) Mr MV Sahade (Defendant) Spinks Eagle Lawyers (Plaintiff) Oliveri Lawyers (Defendant) File Number(s): 2011/3601