SW & JD Reilly & Sons Pty Limited (ACN 001 792 829) v Australian Co-Operative Foods Limited (ABN 010 308 068) (No 2) [2014] NSWIRComm 11

Industrial Relations Commission New South Wales Medium Neutral Citation: SW & JD Reilly & Sons Pty Limited (ACN 001 792 829) v Australian Co-Operative Foods Limited (ABN 010 308 068) (No 2) [2014] NSWIRComm 11 Hearing dates: Written submissions 24 January 2014; 31 January 2014; 7 February 2014 Decision date: 25 March 2014 Jurisdiction: Industrial Court of NSW Before: Backman J Decision: The Court makes the following Order: 1. The applicant is to pay the respondent's costs of the proceedings on an ordinary basis in an amount as agreed or as assessed. In this order "costs" shall be taken to include all costs in the cause including reserved costs (but does not include costs relating to proceedings identified in paragraph 3 of the principal judgment in Reilly in which costs orders have already been made). The applicant shall be entitled to a credit for the costs of the proceedings before the Court of Appeal (assessed on an ordinary basis). Catchwords: Costs - s 106 unfair contract proceedings - respondent's application for costs - orders sought against non-party and applicant - indemnity costs sought - whether applicant engaged in delinquent conduct - Calderbank type offers considered - gross sum order sought - whether interest on costs awarded to a respondent permissible - apportionment of costs considered - order Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Supreme Court Act 1970 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17 Deng v Lieu (No 2) [2009] NSWIRComm 85 Gough & Gilmore Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87 Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 McWilliam Wines Pty Ltd v Liaweena (NSW) Pty Ltd (formerly Jones Steains and Waller (NSW) Pty Ltd) (1993) 32 NSWLR 190 SW & JD Reilly & Sons Pty Limited v Australian Co-Operative Foods Limited [2013] NSWIRComm 103 Tuholi Pty Ltd v Caltex Australia Petroleum Pty Limited [2001] NSWIRComm 7 Wheelahan v North Coast Area Health Service (No 2) [2008] NSWIRComm 244 Category: Costs Parties: SW & JD Reilly & Sons Pty Limited (ACN 001 792 829) (Applicant) Australian Co-Operative Foods Limited (ABN 010 308 068) (Respondent) Representation: Mr A Britt of counsel (Applicant) Mr P Kite, SC with Ms S Piedade of counsel (Respondent) W.H. Parsons & Associates (Applicant) Addisons (Respondent) File Number(s): IRC 2463 of 2002