Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Minogue v Rudd (No 2) [2013] NSWCA 384 Hearing dates: On the papers Decision date: 18 November 2013 Before: Macfarlan JA at [1] Hoeben JA at [6] Emmett JA at [7] Decision: (1) Order the appellant to pay the respondent's costs of the appellant's appeal. (2) Order the respondent to pay the costs of DMW Carpentry Services Pty Ltd ("DMW") of the respondent's and DMW's cross-appeals. [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 - respondent to appeal who was a defendant below cross-appealed against another defendant who was not a respondent to the appeal - that defendant then cross-appealed against the respondent - merits of cross-appeals not determined due to failure of plaintiff's appeal - respondent ordered to pay costs of cross-appeals Category: Costs Parties: Paul Timothy Minogue (Appellant) David Jonathan Rudd t/as Rudd & Co Construction Pty Ltd (Respondent/Cross-Appellant/Second Cross-Respondent) DMW Carpentry Services Pty Ltd (Cross-Respondent/Second Cross-Appellant) Representation: Counsel: B J Gross QC/R Harrington (Appellant) G M Watson SC/D A Lloyd (Respondent/ Cross-Appellant/Second Cross-Respondent) D Hooke SC/S Maybury (Cross-Respondent/Second Cross-Appellant) Solicitors: Carroll & O'Dea (Appellant) Wotton Kearney Lawyers (Respondent/ Cross-Appellant/Second Cross-Respondent) Edwards Michael Lawyers (Cross-Respondent/Second Cross-Appellant) File Number(s): CA 2012/149952 Decision under appeal Jurisdiction: 9111 Citation: Minogue v Rudd [2012] NSWSC 305 Date of Decision: 2012-04-12 00:00:00 Before: Adamson J File Number(s): SC 2008/289464 Judgment 1MACFARLAN JA: The Court gave judgment on this appeal on 22 October 2013 ([2013] NSWCA 345). It dismissed the appeal and cross-appeals and directed that the parties lodge written submissions concerning costs. Those written submissions have now been lodged. 2The appellant concedes that he must pay Mr Rudd's costs and Mr Rudd concedes that he must pay DMW's costs of Mr Rudd's cross-appeal against it. The only issue between the parties is what order, if any, should be made concerning the costs of DMW's cross-appeal against Mr Rudd. 3Mr Rudd refers to DMW's support on the appeal for the appellant's unsuccessful case against Mr Rudd in support of his submission that DMW should pay Mr Rudd's costs of DMW's cross-appeal. On the other hand, DMW points out that it was only at Mr Rudd's instigation that it became a party to the appeal proceedings (because Mr Rudd filed the first cross-appeal) and that Mr Rudd's cross-appeal against it (and therefore also DMW's cross-appeal against Mr Rudd) did not become relevant because of Mr Rudd's success on the appellant's claim against him. 4I consider that Mr Rudd should pay DMW's costs of DMW's cross-appeal. Mr Rudd decided to bring DMW into the appeal proceedings in case the appellant succeeded against him. It was inevitable that when, on appeal, Mr Rudd enlivened his contribution claim against DMW, DMW would do likewise with its contribution claim against him. As I see it, DMW's appeal costs, on both the claim by it and that against it, were attributable to Mr Rudd's desire to have a fall back position. It was through no fault of DMW that the Court did not need to determine the merits of the claims between Mr Rudd and DMW. In my view, Mr Rudd should pay the costs of those claims as he was responsible for them being pursued on appeal. 5In these circumstances, I propose that the following orders be made in addition to those made on 22 October 2013: (1)Order the appellant to pay the respondent's costs of the appellant's appeal. (2)Order the respondent to pay the costs of DMW Carpentry Services Pty Ltd ("DMW") of the respondent's and DMW's cross-appeals. 6HOEBEN JA: I agree with Macfarlan JA. 7EMMETT JA: I agree with the orders proposed by Macfarlan JA for the reasons given by his Honour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2013