Almond Investors Limited v Kualitree Nursery Pty Limited & Anor (No 2) [2011] NSWCA 318

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Almond Investors Limited v Kualitree Nursery Pty Limited & Anor (No 2) [2011] NSWCA 318 Hearing dates: 23 June 2011 Decision date: 30 September 2011 Before: Bathurst CJ at [1]; Giles JA at [14]; Handley AJA at [15] Decision: (1) Appeal allowed. (2) The orders of the District Court of New South Wales dated 29 April 2010, in proceedings No 73/2008, be set aside. (3) The respondents' claim be dismissed. (4) Verdict on the appellant's cross-claim in the sum of $173,707.60. (5) Interest to the appellant pursuant to s 100 of the Civil Procedure Act 2005 from 31 August 2007 to 27 July 2011 being the sum of $61,173.77. (6) Interest to the appellant pursuant to s 101 of the Civil Procedure Act 2005 from 28 July 2011 to the date of payment at the rate of $52.12 per day. (7) The respondents to pay the appellant's costs of the District Court proceedings and of the appeal as agreed or assessed. [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 - general rule that costs follow the event - trial costs - appeal costs COSTS - indemnity costs - where Calderbank letter - reasonableness of rejection Legislation Cited: Civil Procedure Act 2005, s 98, s 100, s 101 Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Jones v Bradley (No 2) [2003] NSWCA 258 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Category: Principal judgment Parties: Almond Investors Limited (Appellant) Kualitree Nursery Pty Limited (First Respondent) Trading Consultants Pty Limited (Second Respondent) Representation: Counsel J Gleeson SC and E M Peden (Appellant) Solicitors Bruce Stewart Dimarco (Appellant) Walsh & Blair (Respondents) File Number(s): CA 2010/130293 Decision under appeal Citation: [2010] NSWDC 71 Date of Decision: 2010-04-28 00:00:00 Before: Norrish DCJ File Number(s): 73/08 (Wagga Wagga)