Macourt v Clark (No 2) [2012] NSWCA 411

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Macourt v Clark (No 2) [2012] NSWCA 411 Hearing dates: On the papers Decision date: 13 December 2012 Before: Beazley JA; Barrett JA; Tobias AJA. Decision: (1) Judgment for the Appellant against the Respondent on the claim and cross-claim in the sum of $315,255.04 (including interest up to 8 November 2011, and after setting off the amount including interest to which the Respondent is entitled against the Appellant). (2) Order that interest be paid under s 100 of the Civil Procedure Act 2005 on the sum of $315,255.04 from 8 November 2011 until the date of the entry of these Orders. (3) Order that, in restitution for the money paid by the Appellant to the Respondent on 13 December 2011 pursuant to the judgment of Gzell J, the Respondent, within 21 days, pay the Appellant the sum of $1,290,805.11 and interest on that sum at the Reserve Bank cash rate from 13 December 2011 until the sum is paid. (4) Order that the Respondent pay the Appellant's costs of the claim and cross-claim before Gzell J on the ordinary basis up to 13 July 2009, and on the indemnity basis thereafter. (5) Order that the Respondent pay the Appellant's costs of the appeal and cross-appeal. (6) Order the Respondent to pay to the Appellant interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules, on the Allowed Percentage of each amount of costs and disbursements actually paid by the Appellant, from the date of payment by the Appellant of each such amount of costs and disbursements until the first to occur of (a) such time as the Respondent has paid the costs due to the Appellant under Orders (4) and (5) above, or (b) any further Order relating to interest on costs in the proceedings. In this Order: X - equals the total amount of costs and disbursements which the Respondent has paid or is liable to pay to its legal advisors in connection with this appeal and the proceedings at first instance. Y - equals the total amount of costs and disbursements allowed on assessment to the Respondent in connection with this appeal and the proceedings at first instance. The Allowed Percentage equals [(Y/X) x 100]%. (7) Grant liberty to the Appellant to apply on 3 days notice to the Respondent for an Order for payment of a specific amount in respect of the interest upon costs pursuant to Order (6). [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 - appropriate apportionment of costs - indemnity costs - resolution of orders Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Lahoud v Lahoud [2012] NSWCA 401 Macourt v Clarke [2012] NSWCA 367 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 Category: Costs Parties: David Charles Ross Macourt (Appellant/Cross Respondent) Anne Clark (Respondent/Cross Appellant) Representation: Counsel: C Harris SC with H Altan (Appellant/Cross Respondent) A Leopold SC with ARR Vincent (Respondent/Cross Appellant) Solicitors: Redmond Hale Simpson Solicitors (Appellant/ Cross Respondent) Norton Rose Australia (Respondent/Cross Appellant) File Number(s): CA9248 of 2012 Decision under appeal Citation: St George Fertility Centre Pty Ltd v Clark [2011] NSWSC 1276 Date of Decision: 2011-10-25 00:00:00 Before: Gzell J File Number(s): SC255614 of 2006