James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 Hearing dates: 26 April 2017 Decision date: 26 April 2017 Before: Basten JA at [1]; Simpson JA at [26] Decision: (1) Refuse the applicant an extension of time within which to seek leave to appeal from the judgment of Ball J of 23 June 2016.

(2) Order that the applicant pay the respondents' costs in this Court. Catchwords: APPEAL – application for leave to appeal – judgment as to costs alone – leave required under Supreme Court Act 1970 (NSW) s 101(2)(c) – challenge to gross sum costs order – whether issue of principle or general public importance – whether insufficient evidence for informed costs assessment by primary judge – whether factual errors warranting intervention

APPEAL – application for leave to appeal – application filed out of time – whether appropriate to grant extension of time – whether appropriate to refuse extension where leave to appeal would be refused

COSTS – gross sum costs order – whether proper exercise of power – whether insufficient evidence to determine reasonable amount – whether amount paid could form basis of calculation in absence of information as to work done – Civil Procedure Act 2005 (NSW) s 98(4)(c) Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 98; Pt 6 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Be Financial Pty Ltd v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Gibson v McIntosh [2015] NSWCA 112 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Johnson Tiles Pty Ltd v ESSO Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Category: Procedural and other rulings Parties: David Anthony James (Applicant) Australia and New Zealand Banking Group Ltd (First Respondent) Paul Merryweather and Greg Hall (Second Respondents) Representation: Counsel: Mr J Baird (Applicant) Mr R M Foreman (Respondents)