Arnold v Forsythe (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Arnold v Forsythe (No 2) [2012] NSWCA 283

Hearing dates:

On the papers

Decision date:

13 September 2012

Before:

McColl JA at [1]
Sackville AJA at [2]

Decision:

1. The appellant's motion filed on 8 March 2012 be dismissed.

2. The appellant pay the respondents' costs of the motion.

3. The respondents, if otherwise qualified, have a certificate in respect of the appeal under the Suitors Fund Act 1951.

[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 - application based on Calderbank letter - no genuine offer of compromise.

Legislation Cited:

Suitors Fund Act 1951

Cases Cited:

N/A

Texts Cited:

N/A

Category:

Costs

Parties:

Peter Munro Arnold (Applicant)

David Ross Forsythe (First Respondent)

Graeme John Weidenhofer (Second Respondent)

Paul Geoffrey Mannion trading as Rost & Kitchener, Chartered Accountants (Third Respondent)

Representation:

Counsel:
B.K. Nolan (Applicant)
N/A (Respondents)
Solicitors:
John Conti Lawyer (Applicant)
Beswick Lynch Lawyers (Respondents)

File Number(s):

2008/318542-006

 Decision under appeal 

Date of Decision:

2011-03-04 00:00:00

Before:

Truss DCJ

File Number(s):

2008/318542

Judgment

1. McCOLL JA: I agree with Sackville AJA.

1. SACKVILLE AJA: In Arnold v Forsythe [2012] NSWCA 18, this Court (McColl JA, Young JA and Sackville AJA) allowed an appeal from a decision of a Judge of the District Court (Truss DCJ). On 4 March 2011, her Honour dismissed a motion by the appellant (the defendant in the District Court) seeking orders:

• setting aside an order made by the District Court on 19 August 2010 striking out the appellant's defence and dismissing the appellant's cross-claim;
• setting aside a District Court judgment entered on 30 September 2010 in favour of the respondents on 30 September 2010 for $260,467.60;
• setting aside an order made by the District Court on 14 October 2010 for the payment by the appellant of interest of $46,871.04; and
• granting liberty to the appellant to file an amended defence and cross-claim in the District Court proceedings.

1. The orders made by this Court on 23 February 2012 were as follows (at [89], [91] and [100]):

"1.Appeal allowed.

2.Orders made by Truss DCJ on 4 March 2011 be set aside.

3.The default judgment and orders made by Truss DCJ on 30 September 2010 and 14 October 2010 be set aside.

4.Remit to the District Court for hearing and determination Prayer 2(b) of the notice of appeal dated 19 August 2011.

5.The appellant pay the costs of the respondents:

(a)thrown away by reason of the entry of default judgment on 30 September 2010, including the costs of the hearing on 30 September 2010;

(b)thrown away by reason of the entry of default judgment on 14…