Grima v RFI (Aust) Pty Ltd (No 2) [2014] NSWCA 397

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Grima v RFI (Aust) Pty Ltd (No 2) [2014] NSWCA 397 Hearing dates: On the papers Decision date: 21 November 2014 Before: Meagher JA; Barrett JA; Emmett JA Decision: 1. Set aside orders (1), (3), (5), (6) and (8) made by the primary judge on 10 February 2014. 2. In lieu of those orders, order: (a) Judgment for Carmel Grima ("Mr Grima") against RFI (Aust) Pty Ltd ("RFI") in the sum of $4,395,000. (b) Judgment for RFI against the Allied Overnight Express Pty Ltd ("Allied") on the first cross claim in the sum of $82,500. (c) Judgment for Allied against RFI on the second cross claim in the sum of $2,186,406.62 ("the recovery sum"). (d) RFI is to pay interest to Allied on the recovery sum in the amount of $410,373.76. (e) RFI is entitled to deduct the sum of $82,500 from the recovery sum in part satisfaction of its judgment against Allied referred to in 2(d) above. 3. Mr Grima's entitlement to interest (if any) against RFI is remitted for determination by a Judge of the Common Law Division. 4. The Court, with the consent of the parties, makes the following notations: (a) Allied has paid to RFI the sum of $165,000 in satisfaction of its liability arising from the first cross claim as found by the primary judge. (b) RFI will repay the sum of $82,500 to Allied, being the difference between Allied's apportioned liability at trial and its apportioned liability before this Court. (c) RFI has paid to Allied the sum of $1,857,803.56 in partial satisfaction of the second cross claim. (d) RFI has paid to Allied the sum of $312,443.43 in partial satisfaction of the interest accrued on the recovery sum. 5. Order that RFI pay Mr Grima's costs of the appeal brought by notice of appeal filed on 13 February 2014 and that there be no order as to costs either in favour of or against Allied. [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 - costs - whether costs should be apportioned to separate issues - no matter of principle Cases Cited: Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 Category: Costs Parties: Carmel Grima (Appellant) RFI (Aust) Pty Ltd t/as Regen Foam (First Respondent) Allied Overnight Express Pty Ltd (Second Respondent) Representation: Counsel: E G Romaniuk SC/S J Maybury (Appellant) M T McCulloch SC/JC Chapman (First Respondent) J P Guihot (Second Respondent) Solicitors: Edwards Michael Lawyers (Appellant) Walker Hodges & Co (First Respondent) HWL Ebsworth Lawyers (Second Respondent) File Number(s): CA 2014/46322