Battle v Bundagen Co-operative Ltd (No 3)

[2011] NSWCA 83

Court of Appeal

New South Wales

Case Title:	Battle v Bundagen Co-operative Ltd (No 3)
Medium Neutral Citation:	[2011] NSWCA 83
Hearing Date(s):	On the papers
Decision Date:	08 April 2011
Jurisdiction:
Before:	Hodgson JA at 1; Campbell JA at 8; Sackville AJA at 9
Decision:	(1) Each party to bear its own costs of the first instance proceedings. (2) The Co-operative to pay two-thirds of Mr Battle's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible. [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 - Discrete issues on which successful party failed - Appropriate orders at first instance and on appeal.
Legislation Cited:	Suitors' Fund Act 1951
Cases Cited:	Battle v Bundagen Co-operative Ltd (No 2) [2011] NSWCA 38
Texts Cited:
Category:	Costs
Parties:	Christopher BATTLE  (appellant) BUNDAGEN CO-OPERATIVE LTD  (respondent)
Representation
- Counsel:	Counsel: J DOYLE/ L GOODCHILD (Ms)  (appellant) P SINGLETON  (respondent)
- Solicitors:	Solicitors: In Person  (appellant) Carty & Cox Solicitors  (respondent)
File number(s):	2009/293060
Decision Under Appeal
- Court / Tribunal:
- Before:	Latham J
- Date of Decision:	05 March 2010
- Citation:	Bundagen Co-operative v Battle [2010] NSWSC 160
- Court File Number(s)	11238/2009
Publication Restriction:

Judgment

1. HODGSON JA: The principal judgment in this matter was handed down on 8 March 2011: Battle v Bundagen Co-operative Ltd (No 2) [2011] NSWCA 38. The parties have now provided submissions on costs.

1. Mr Battle has now obtained orders in his favour for both the proceedings at first instance and the appeal; and costs should follow the event except to the extent that some other order is justified.

1. In this case, justification could be provided if it were the case that costs have been increased because Mr Battle raised discrete issues on which he failed.

1. As pointed out by Mr Doyle for Mr Battle, the majority of the Court of Appeal held in his favour on the question of natural justice in relation to the 22 July 2007 resolution; but this was only in relation to the argument that a two-stage process was required. Mr Battle did not succeed in relation to the many other discrete grounds relied on for denial of natural justice, as well as many other discrete issues, all of which took a considerable time both at first instance and on appeal.

1. At first instance, Mr Battle was unrepresented and his recoverable costs would be comparatively small. The Co-operative was put to considerable expense in meeting many discrete issues on which Mr Battle failed, and but for which the case would probably have been finished within one day, rather than two. In my opinion, the appropriate order for costs at first instance is that each party bear its own costs.

1. As regards the appeal, the Co-operative was put to expense in answering many grounds and arguments which did not succeed, but the hearing was concluded within one day. In my opinion, the appropriate order is that the Co-operative pay two-thirds of the costs of Mr Battle, and that it have a certificate under the Suitors' Fund Act 1951 if otherwise eligible.

1. Accordingly, I propose the following orders:

(1) Each party to bear its own costs of the first instance proceedings.

(2) The Co-operative to pay two-thirds of Mr Battle's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.

1. CAMPBELL JA: I agree with Hodgson JA.

1. SACKVILLE AJA: I agree with Hodgson JA.

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