Sarkar and Islam v Everest Property Holdings Pty Ltd [2011] NSWCA 305

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sarkar and Islam v Everest Property Holdings Pty Ltd [2011] NSWCA 305 Hearing dates: On the papers Decision date: 28 September 2011 Before: Beazley JA at [1]; Campbell JA at [2]; Young JA at [3] Decision: 1. Appeal allowed. 2. Orders made by White J on 16 February 2010 are set aside. 3. Declare that the contract of sale bearing date 1 September 2004 between the appellants as purchasers and the first respondent as vendor, has been validly terminated by the appellants. 4. Judgment for the appellants against the first respondent for $71,934.22. 5. Liberty to apply for judgment to be entered for the second respondent against the appellants in respect of any part of the sum of $71,934.22 not recovered from the first respondent. 6. Order that the first respondent pay the appellants' costs of the proceedings and of the appeal. 7. Order that the first respondent pay the second respondent's costs of the proceedings (other than the cross-claims) and of the appeal on a submitting appearance basis. 8. Order that the first respondent pay the second respondent's costs of the cross-claim (second respondent versus first respondent) of 29 May 2008 up to 14 December 2009. 9. Order that the second cross-claim (first respondent versus appellants) of 19 May 2008 be dismissed with costs. [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- whether full costs should be awarded in an appeal in a vendor and purchaser case which succeeded on a point which was subsidiary to the main argument advanced at trial- full costs awarded. Cases Cited: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Category: Costs Parties: Mohammed Abu Sarkar (First Appellant) Shazedul Islam (Second Appellant) Everest Property Holdings Pty Ltd (First Respondent) Lumley General Insurance Limited (Second Respondent) Representation: Counsel: