Court of Appeal Supreme Court New South Wales Medium Neutral Citation: WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors (No 2) [2014] NSWCA 236 Hearing dates: On the papers Decision date: 18 July 2014 Before: Beazley P at [1] Hoeben JA at [2] Leeming JA at [17] Decision: (1) In lieu of the orders made by Judge Cogswell SC on 11 July 2012 an additional order be made: (ix) Each of the defendants is to bear the plaintiff's costs of the proceedings as to 25 percent by Mirvac, as to 25 percent by WB Jones and as to 50 percent by JMKG but otherwise each defendant is to bear its own costs of the proceedings. (2) The appellants are to bear the first respondent's (Peter Richardson) costs of the appeals as follows: (i) In matter 2012/245212 WB Jones is to bear 25 percent, Mirvac 25 percent and JMKG 50 percent of Mr Richardson's costs of the appeal, and otherwise to bear their own costs of the appeal. (ii) In matter 2012/246067 WB Jones is to bear 25 percent, Mirvac 25 percent and JMKG 50 percent of Mr Richardson's costs of the appeal, and otherwise to bear their own costs of the appeal. (iii) In matter 2013/116979 WB Jones is to bear 25 percent, Mirvac 25 percent and JMKG 50 percent of Mr Richardson's costs of the appeal, and otherwise to bear their own costs of the appeal. [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 - three appellants appealed findings as to liability, apportionment and damages in District Court - two appellants successful on apportionment but otherwise appeals dismissed - dispute between appellants as to costs consequences - costs in District Court and of appeal to reflect apportionment findings made on appeal. Cases Cited: WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors [2014] NSWCA 127 Category: Costs Parties: 2012/245212 WB Jones Staircase & Handrail Pty Ltd - Appellant Peter Richardson - First Respondent Mirvac Constructions Pty Ltd - Second Respondent JMKG Pty Ltd - Third Respondent 2012/246067 Mirvac Constructions Pty Ltd - Appellant Peter Richardson - First Respondent WB Jones Staircase & Handrail Pty Ltd - Second Respondent JMKG Pty Ltd - Third Respondent 2013/116979 JMKG Pty Ltd - Appellant Peter Richardson - First Respondent Mirvac Constructions Pty Ltd - Second Respondent WB Jones Staircase & Handrail Pty Ltd - Third Respondent Representation: Counsel: Mr R Cavanagh SC - WB Jones Staircase & Handrail Pty Ltd Mr R Sheldon SC/Ms LJ Friedwald - Peter Richardson Mr DJ Russell SC/Mr J Catsanos - Mirvac Constructions Pty Ltd Mr JE Sexton SC/Mr PJ Gow - JMKG Pty Ltd Solicitors: Turks Legal - WB Jones Staircase & Handrail Pty Ltd Brydens Law Office - Peter Richardson McCabes - Mirvac Constructions Pty Ltd Kennedys Lawyers - JMKG Pty Ltd File Number(s): 2012/245212 2012/246067 2013/116979 Decision under appeal Date of Decision: 2012-07-11 00:00:00 Before: Cogswell SC DCJ File Number(s): 2009/337542 Judgment 1BEAZLEY P: I have had the advantage of reading in draft the reasons of Hoeben JA. I agree with his Honour's reasons and the orders he proposes. 2HOEBEN JA: The appeals in this matter were heard on 6 and 7 February 2014 and judgment was delivered on 17 April 2014: WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors [2014] NSWCA 127. The judgment made orders as to costs, but left some outstanding. These related to the costs of the trial and the costs of the appeals as between the appellants. Written submissions were received from the appellants on these issues. Background 3The detailed facts are set out in the judgment. In summary, Mirvac built a project home and in the course of so doing, contracted with WB Jones, staircase manufacturer and installer, to manufacture and install a balustrade on the first floor. WB Jones contracted with JMKG which installed the balustrade. In 2006 an accident occurred when the balustrade gave way causing injuries to the owner. The owner brought proceedings in negligence against Mirvac, WB Jones and JMKG in the District Court and was successful in obtaining damages of $750,000. 4In the District Court liability was apportioned as to 30 percent against Mirvac, 30 percent against WB Jones and 40 percent against JMKG. The hearing proceeded over 14 days between 27 September 2011 and 11 July 2012. The three unsuccessful defendants appealed to this Court. WB Jones and Mirvac appealed against the finding that they were negligent, that their share of responsibility was 30 percent each and against damages. JMKG also appealed against damages but opposed the appeals by Mirvac and WB Jones as to liability and apportionment. 5In this Court Mirvac and WB Jones were successful in having the apportionment against them reduced so that they became responsible for damages as to 25 percent each. Otherwise the appeals were dismissed. 6At the hearing of the appeals, both Mirvac and WB Jones argued strenuously that negligence not be found against them. This was opposed by the owner and JMKG. All appellants addressed the issue of apportionment. In so far as damages were concerned, it was agreed between the appellants that senior counsel for WB Jones would make submissions in that regard. 7Mirvac and WB Jones adopted a common position in their submissions on the outstanding costs issues. They argued that the costs in the District Court should be apportioned in accordance with the findings made in the appeals, i.e. 25 percent against each of them and 50 percent against JMKG. They submitted that the same apportionment should be made in respect of the costs of the appeals and that the appellants should bear their own costs of the appeals. 8JMKG adopted a different approach. It submitted that the success of Mirvac and WB Jones in having the judgments against them reduced was so marginal that it should not be reflected in any positive costs order in the appeals. It submitted that most of the appeals had been taken up by WB Jones arguing that it was not liable in negligence and that WB Jones had made all the submissions both written and oral relating to damages. 9JMKG submitted that because no challenge had been made in the appeals to the costs orders in the District Court, they should be left unchanged. 10JMKG sought orders that the apportionment of costs in the District Court remain the same as that made by the trial judge and that Mirvac and WB Jones pay the costs of the appeals including its costs or 80 percent of its costs. Consideration 11While it is clear that no specific challenge was made to the costs orders in the District Court, it was implicit in the appeals that, if there were any change on the issues of liability which were being argued, this would be reflected in an adjustment of the costs orders made in the District Court. No submissions were made to the contrary during the appeals. Since the apportionment of liability found by the District Court against Mirvac and WB Jones was reduced, the obligation to pay the costs of the trial in the District Court should also be adjusted accordingly. 12In relation to the costs of the appeals, it is not correct to say that the success of WB Jones and Mirvac was marginal. Not only was there an amount of $75,000 involved but there was a potential adjustment of 14 days of costs in the District Court. In my opinion, the success of WB Jones and Mirvac, albeit moderate, was sufficient for there to be an appropriate costs adjustment in the Court of Appeal. 13While it is true that WB Jones occupied time in the appeals making submissions as to its liability, that time was not excessive. The submissions of JMKG as to the liability of the other two appellants and in seeking to maintain the status quo ante also occupied a significant but not unreasonable amount of time. 14The fact that senior counsel for WB Jones made the oral submissions as to damages was agreed between the parties. It was an appropriate course to adopt for the efficient running of the appeals. At no point did JMKG resile from any of the submissions as to damages made on behalf of WB Jones. It should, however, be noted in JMKG's favour that it did not waste the Court's time by arguing that there was no liability on its part. Rather, it restricted its submissions to inculpating the other two appellants and apportionment. In the circumstances, there is no basis for any order that WB Jones and Mirvac pay any part of JMKG's costs of the appeals. 15It follows that the real issue relating to the costs of the appeals is whether those costs should be awarded to reflect the outcome of the appeals as to apportionment. I have concluded that to order otherwise would not properly reflect the conduct and outcome of the appeals. While the success of WB Jones and Mirvac was modest, they were successful to the extent indicated and that should be reflected in the costs of the appeals. It follows that the costs of the appeals should be borne in the same proportion as the findings as to liability. Conclusion 16The orders which I propose and which are to operate in addition to the orders already made by this Court are as follows: (1) In lieu of the orders made by Judge Cogswell SC on 11 July 2012 an additional order be made: (ix) Each of the defendants is to bear the plaintiff's costs of the proceedings as to 25 percent by Mirvac, as to 25 percent by WB Jones and as to 50 percent by JMKG but otherwise each defendant is to bear its own costs of the proceedings. (2) The appellants are to bear the first respondent's (Peter Richardson) costs of the appeals as follows: (i) In matter 2012/245212 WB Jones is to bear 25 percent, Mirvac 25 percent and JMKG 50 percent of Mr Richardson's costs of the appeal, and otherwise to bear their own costs of the appeal. (ii) In matter 2012/246067 WB Jones is to bear 25 percent, Mirvac 25 percent and JMKG 50 percent of Mr Richardson's costs of the appeal, and otherwise to bear their own costs of the appeal. (iii) In matter 2013/116979 WB Jones is to bear 25 percent, Mirvac 25 percent and JMKG 50 percent of Mr Richardson's costs of the appeal, and otherwise to bear their own costs of the appeal. 17LEEMING JA: I agree with Hoeben JA. ********** 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: 22 July 2014