Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211 Hearing dates: On the papers Decision date: 12 July 2013 Before: Meagher JA, Barrett JA, Ward JA Decision: 1. Appeal allowed in part. 2. Vary Order (4) made by Einstein J on 6 June 2011 by omitting all words after "except for" and inserting in lieu: "her findings in relation to 'V:29 The Courtyard Works' and 'V:184 Margin on Variations', which are to be rejected". 3. Set aside Order 4 made by McDougall J on 4 November 2011 and order in lieu: "Judgment for Walton in the amount of $454,080.13 exclusive of any claim for judgment for GST in respect of those damages". 4. Set aside Order 5 made by McDougall J on 4 November 2011 and order in lieu: "Judgment for Illawarra in the amount of "$177,122.59 exclusive of any claim for judgment for GST in respect of those damages". 5. Order that the appellant pay the respondent's costs of the appeal. 6. Grant liberty to apply on seven days' notice in respect of moneys held in a controlled moneys account of Crisp Legal pursuant to Order 4 made by this Court on 28 November 2011. [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: PROCEDURE - various matters in consequence of determination of appeal - costs - where offers of compromise were made in the course of the proceedings at first instance - whether the outcome on appeal warrants variation of the costs order at first instance on Calderbank principles - two money judgments given at first instance with order that they be set off - operation of s 100(4) of the Civil Procedure Act in those circumstances - meaning of "the amount for which judgment is given" - claim on appeal for interests on costs at first instance - such claim does not arise in consequence of decision on appeal and is unsupportable - how costs of appeal should be borne Legislation Cited: Civil Procedure Act 2005, ss 100, 101(4) Trade Practices Act 1974 (Cth), ss 51A, s52 Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586 Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2013] NSWCA 6, 11 February 2013 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Lahoud v Lahoud [2006] NSWSC 126 Category: Consequential orders Parties: Illawarra Hotel Company Pty Ltd - Appellant Walton Construction Pty Ltd - Respondent Representation: S R Donaldson SC/Ms H M Durham/D A Moujalli - Appellant M R Gracie/D Neggo - Respondent Norbert Lipton & Co - Appellant Crisp Legal - Respondent File Number(s): 2008/290556