Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell (No 2) [2012] NSWCA 129

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell (No 2) [2012] NSWCA 129 Hearing dates: On the papers Decision date: 09 May 2012 Before: Bathurst CJ at [1] Allsop P at [2] Campbell JA at [22] Decision: (1) As to the appeal number 2009/298570 (formerly 40454 of 2009): (a) Order (1)(c) made by the Court on 21 December 2011 be varied by deleting the words "The appellant pay the respondents' costs of the appeal" and by inserting in lieu thereof: "(c) Set aside order 6 made by the Supreme Court on 4 September 2009 (as set out in [448] of the primary judge's reasons) and in lieu thereof order that the plaintiff pay the first and second defendants'/first and second cross-claimants' costs of the proceedings." (b) Add a new order (1)(d) as follows: "(1)(d) The appellant pay the first and second respondents' costs of the appeal." (c) The dates "26 February 2010" twice appearing in order 1(b) be replaced by the date "4 September 2009". (2) As to appeal number 2009/298571 (previously 40455 of 2009): (a) Order (2)(c) made by the Court on 21 December 2011 be varied by deleting the words "The appellant pay the respondents' costs of the appeal" and by inserting in lieu thereof: "(c) Set aside order 5 made by the Supreme Court on 4 September 2009 (as set out in [447] of the primary judge's reasons) and in lieu thereof order that the plaintiff pay the first and second defendants'/first and second cross-claimants' costs of the proceedings." (b) Add a new order (2)(d) as follows: "(2)(d) The appellant pay the first and second respondents' costs of the appeal." (c) The date "26 February 2010" in order 2(b) be replaced by the date "4 September 2009". (3) As to appeal number 2009/298572 (previously 40456 of 2009): (a) Order (3)(b)(iii) made by the Court on 21 December 2011 be varied by inserting the words "first and second defendants'/ first and second cross-claimants" in lieu of the words "defendants'/cross-claimants'". (b) Order (3)(c) made by the Court on 21 December 2011 be varied by inserting the words "first and second" before the words "respondents' costs of the appeal". (c) The date "26 February 2010" in order 3(b) be replaced by the date "4 September 2009". (4) The applicants on the motion pay the respondent's (ASIC's) costs of the motion. [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 - ASIC as intervener - intervention efficient and of significant assistance to the Court - intervention proper and in public interest - intervener bears own costs - intervener not ordered to pay costs for any extension of hearings Cases Cited: City of Burnside v Attorney-General (SA) [1994] SASC 5136; 63 SASR 65 Liverpool City Council v Weir (1984) 53 ALR 77 Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Insurance Pte Ltd [2009] WASCA 31(S) Category: Costs Parties: 2009/298570 Tonto Home Loans Australia Pty Ltd (Appellant) Jose De Carvalho E Rego Tavares (First Respondent) Kim Lee-Anne Rowe (Second Respondent) Australian Securities and Investments Commission (Third Respondent)