Cushman & Wakefield (NSW) Pty Ltd v Farrell (No 2) [2017] NSWCA 62

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cushman & Wakefield (NSW) Pty Ltd v Farrell (No 2) [2017] NSWCA 62 Hearing dates: On the papers Decision date: 29 March 2017 Before: Macfarlan JA; Ward JA; Emmett AJA Decision: 1. The respondent (being the plaintiff in the Court below) pay the appellant/defendant's costs of and incidental to the amended statement of claim on the ordinary basis (but for the avoidance of doubt not any costs of the cross-claim in the Court below). 2. The respondent pay 80% of the appellant's costs of the appeal on the ordinary basis up to and including 7 October 2016 and on the indemnity basis thereafter. 3. The respondent pay to the appellant: (a) the amount of $226,755.72, which was paid by the appellant to the respondent's nominated account on or about 19 October 2016, plus interest upon that amount calculated in accordance with section 100 of the Civil Procedure Act 2005 (NSW) for the period from 19 October 2016 until the date of repayment; and (b) the amount of $241,158.71, which was paid by the appellant to the trust account of the respondent's solicitors on or about 19 October 2016, plus any interest accruing upon that amount while in the respondent's solicitors trust account for the period from 19 October 2016 until the date of repayment and, in relation to any of that money which has been disbursed out of the respondent's solicitors trust account to the respondent, interest upon that amount calculated in accordance with section 100 of the Civil Procedure Act 2005 (NSW) from the date of disbursement to the respondent until the date of repayment. 4. Each party pay its own costs of the submissions made in relation to consequential orders following the judgment handed down on 24 February 2017 in this Court. Catchwords: COSTS – general rule – costs should follow the event – whether unjust for unsuccessful respondent to bear costs of proceedings where court reaches conclusion on basis of reasoning not on all fours with argument run at first instance