Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388 Hearing dates: On written submissions Decision date: 30 November 2012 Before: Campbell JA at [1]; Barrett JA at [111]; Sackville AJA at [112] Decision: In each of the appeal (2011/236264) and each of the applications for leave to appeal and cross appeal (2003/92819) (1) Grant leave to appeal to each of Mr Brakatselos, Mr Fredericksen, Mr Holmes, Mr Rowe, Ms Russo, Mrs Wallace and Mr Gianuzzi. (2) Order, nunc pro tunc, that each such person be added as an Appellant in appeal 2011/236264 as from 21 July 2011, to the intent that orders made and costs incurred in connection with any such application for leave to appeal will be treated as orders made in the appeal and costs of the appeal. In the appeal (2011/236264) (3) The orders made by Einstein J on 29 April 2010 be set aside insofar as - (i) they struck out the following parts of the pleadings: (a) Brakatselos' Defence, sub-para 29(ba) (i)-(ix) and (xviii)(aa); (b) Federicksen's Defence, sub-para 27(ba) (i)-(ix) and (xviii)(aa); (c) Rowe's Defence, sub-para 26(ba) (i)-(ix) and (xviii)(aa); (d) Russo's Defence, sub-para 27(ba) (i)-(ix) and (xviii)(aa); (e) Wardle's Defence, paras 27-32 and sub-para 33(ba) (i)-(ix) and (xviii)(aa); (f) Wallace's Defence, sub-para 27(ba) (i)-(ix) and (xviii)(aa) (g) Giannuzzi's Defence, paras 24, 25, 28-33 and sub-para 34(ba) (i)-(ix) and (xviii)(aa); (h) Long's Defence, sub-para 34(ba) (i)-(ix) and (xviii)(aa); and (ii) they made the costs order in clause 3 of those orders (4) In lieu of the order referred to in Order 3(ii) above, order (a) Mr Atkinson, Ms Michael and Ms Spyrakis jointly and severally to pay three-twelfths of 50% of the costs of the Respondents of the notice of motion to which the orders of 29 April 2010 relate ("the strike out motion") (b) The Respondents pay to Mr Holmes one-twelfth of 50% of the costs of the defendants listed in Schedule B of those orders ("the Continuing Defendants") of the strike out motion (c) Each Appellant other than Mr Holmes have as his or her respective costs in the cause one-twelfth of 50% of the costs of the Continuing Defendants of the strike out motion. (d) The Respondents have as its costs in the cause 50% of its costs of the strike out motion, excluding the costs to which Order 4(a) above relates. (5) The order made at first instance on 9 June 2011, dismissing the Appellants' cross-claims, be set aside. (6) Set aside the orders for costs made by paras 3 and 4 of the orders of Einstein J made on 9 June 2011, and in lieu thereof order: (3) Subject to order 6 of the orders made on 9 June 2011, Mr Atkinson, Ms Michael and Ms Spyrakis to pay (i) Severally, such of the costs of Agricultural and Rural Finance Pty Ltd as are attributable, respectively, to him or her severally (ii) Jointly and severally, three-twelfths of the costs of Agricultural and Rural Finance Pty Ltd as are properly attributable to the Continuing Defendants jointly, minus any costs that it has already recovered by way of settlement with other defendants inclusive of costs. (4) Mr Atkinson, Ms Michael and Ms Spyrakis to pay: i. Severally, such of the cost of Oceania Agriculture Pty Ltd of the cross claims as are attributable, respectively, to him or her severally. ii Jointly and severally, three-twelfths of the costs of Oceania Agriculture Pty Ltd as are properly attributable to the Continuing Defendants jointly. (7) Subject to costs orders already made, order the Respondents to pay to Mr Holmes one-ninth of the total costs of the Appellants of the appeal. (8) Subject to orders as to costs already made, reserve to the judge who decides the remitted hearing the question of how the costs of the first trial should be borne. (9) ARF and the First Appellant, David James Wardle, shall do all things necessary to cause the joint trust account held with St George Bank, being Power Saver Account No. XXX XXX XXX to be closed and for the entire proceeds of that account to be paid to David James Wardle pursuant to the terms of the orders of the Supreme Court of New South Wales made on 18 July 2011 for Mr Wardle to secure the judgment debt entered against him on 9 June 2010 as a term of the stay of execution of the judgment debt granted by that Court pending the determination of his appeal in this Court. (10) The First Respondent repay $36,271.77 to Mr Fredericksen, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $1,534.86); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (11) The First Respondent repay $40,061.57 to Mr Holmes, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $1,695.23); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (12) The First Respondent repay $80,123.14 to Mr Rowe together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $3,390.46); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (13) The First Respondent repay $80,123.14 to Ms Russo, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $3,390.46); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (14) The First Respondent repay $31,958.80 to Mrs Wallace, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 being $1,352.35); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (15) The First Respondent repay $100,809.81 to Mr Giannuzzi, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 being $4,265.82); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (16) The Respondents to have a certificate under the Suitors Fund Act 1951, if qualified, concerning the costs of the appeal. [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: APPEAL AND NEW TRIAL - costs - jurisdiction - order affecting non-parties - whether Court of Appeal has jurisdiction to make a costs order that has the incidental effect of benefiting non-parties to the appeal - consideration of principle and s 98 Civil Procedure Act - court does have jurisdiction to make such orders when appropriate