Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith (No 2) [2013] NSWCA 218

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith (No 2) [2013] NSWCA 218 Hearing dates: On the papers Decision date: 17 July 2013 Before: Basten JA at [1]; Ward JA at [24]; Tobias AJA at [25] Decision: Substantive orders: (1) Set aside orders made by Schmidt J on 9 December 2011, other than orders 4, 9 and 17 (relating to payment of the plaintiff's costs of the proceedings at trial). (2) In place of those orders make the following orders, to take effect from 9 December 2011: (A) Give judgment for the plaintiff: (i) against the first defendant (Brambles) in an amount of $704,558; (ii) judgment for the plaintiff against the second defendant (Baden) in the sum of $704,558; (iii) judgment for the plaintiff against the third defendant (Gillespies) in the amount of $520,786. (B) Give judgment for the first defendant (Brambles) - (a) on the first cross-claim, against the second defendant (Baden) in an amount of $281,823, and (b) on the third cross-claim, against the third defendant (Gillespies) in the sum of $208,314. (C) Give judgment in favour of the second defendant (Baden) - (a) on the second cross-claim, against the first defendant (Brambles) in an amount of $140,911, and (b) on the fifth cross-claim, against the third defendant (Gillespies) in an amount of $208,314. (D) Give judgment for the third defendant (Gillespies) on the fourth cross-claim - (a) against the first defendant (Brambles) in an amount of $104,157, and (b) against the second defendant (Baden) in an amount of $208,314. (3) The total liability of Brambles under the second and fourth cross-claims is not to exceed $140,911. (4) The total liability of Baden under the first and fourth cross-claims is not to exceed $281,823. (5) The total liability of Gillespies under the third and fifth cross-claims is not to exceed $208,314. (6) Pursuant to s 151A(1)(b) of the Workers Compensation Act 1987, an amount of $194,245 is to be deducted from the damages payable by Gillespies to the plaintiff and is to be paid to the third defendant's workers' compensation insurer, Gallagher Bassett Services Pty Ltd. Costs orders with respect to the appeals: (1) Baden and Brambles are to pay the costs of the plaintiff in this Court, which should be borne as between them in equal shares. (2) No order as to the costs of the appeals as between Baden and Brambles. (3) Baden is to pay Gillespies' costs of Baden's appeal, to be assessed as 50% of Gillespies' total costs of the proceedings in this Court. (4) Brambles is to pay 75% of Gillespies' costs of Brambles' appeal, to be assessed as 37.5% of Gillespies' total costs of the proceedings in this Court. [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 - appeal costs - plaintiff successful on all issues as to liability - liability substance of the appeal - one appellant partly successful in reapportioning liability - apportionment small part of argument in appellate court - appropriate costs order