Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 Hearing dates: On the papers Decision date: 12 November 2018 Before: McColl JA at [1]; Macfarlan JA at [85]; Leeming JA at [86] Decision: (1) Note that judgment will be entered for Cawarrah Holdings Pty Ltd in the sum of $36,631.16, plus pre-judgment interest at the rates referred to in Practice Note DC (Civil) No 15, such judgment to take effect on 13 November 2017 upon the parties providing to the court the interest figure and therefore the total judgment amount. (2) Note that judgment will be entered for Crusader Pty Ltd (ACN 094 092 734) in the sum of $79,704.98 plus pre-judgment interest at the rates referred to in Practice Note DC (Civil) No 15, such judgment to take effect on 13 November 2017 upon the parties providing to the court the interest figure and therefore the total judgment amount. (3) Direct the parties to provide the figures referred to in notes (1) and (2) to the court within seven days. (4) Order Cellarit Pty Ltd to pay Cawarrah Holdings Pty Ltd and Crusader Pty Ltd (ACN 094 092 734) their costs of the trial. (5) Order Cawarrah Holdings Pty Ltd and Crusader Pty Ltd (ACN 094 092 734) to pay 80% of Cellarit Pty Ltd's costs of the appeal and cross-appeal incurred on or before 28 September 2018. (6) Dismiss Cawarrah Holdings Pty Ltd and Crusader Pty Ltd (ACN 094 092 734)'s motion filed on 12 October 2018. (7) Direct that the sum of $45,000, paid into court on 20 December 2017 pursuant to the order of the Registrar of the Court of Appeal dated 27 November 2017, be paid out to Cellarit Pty Ltd. Catchwords: COSTS – costs of trial – where trial judge entered verdict and judgment for plaintiffs – where appeal and cross-appeal allowed – where damages payable by defendant reduced by approximately 60% – where general rule that costs follow the event – where multiple issues raised at trial – whether "late amendment" principle applied – whether defendant succeeded on dominant issue on appeal – whether plaintiffs engaged in disentitling conduct