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Bostik Australia Pty Ltd v Liddiard (No 2)

Bostik Australia Pty Ltd v Liddiard (No 2)

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Case Copied 24 September 2009 26 min read

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New South Wales

Court of Appeal

CITATION: BOSTIK AUSTRALIA PTY LTD v LIDDIARD (NO 2) [2009] NSWCA 304

HEARING DATE(S): On the papers

JUDGMENT DATE:
24 September 2009

JUDGMENT OF: Beazley JA at 1; Ipp JA at 1; Basten JA at 1

DECISION:
(1) Vary order (3) made on 26 June 2009 so that it provides:
(3) Order the first respondent (Mr Liddiard) to pay 40% of the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.
(2) Otherwise dismiss the notice of motion of the first respondent (Mr Liddiard) filed on 9 July 2009.
(3) Order the appellant (Bostik Australia Pty Ltd) to pay 50% of the first respondent’s costs of his motion.
(4) Vary the orders made on 26 June 2009 by adding to order (2) a new paragraph (c) and making consequential amendments to paragraphs (a) and (b), so that order (2) now reads:
(2) In lieu thereof:
(a) enter judgment for the second defendant against the plaintiff;
(b) order the plaintiff to pay the second defendant’s costs of the proceedings other than those attributable to the cross-claims, and
(c) dismiss the cross-claims of the first and second defendants, with no order as to costs of the cross-claims.
(5) Otherwise dismiss the notice of motion filed by the appellant on 10 July 2009.
(6) Order that the appellant pay the costs of the second respondent (Brolton) of the appellant’s motion.

CATCHWORDS: COSTS – costs of appeal – Sanderson Order – two respondents to appeal – both respondents necessarily joined – whether any basis upon which unsuccessful respondent could be found responsible for the joinder of other respondent - COSTS – costs of trial – Sanderson Order – plaintiff alerted to possibility of proceedings against successful defendant through conduct of unsuccessful defendant – enquiry made as to whether plaintiff contemplating proceedings against successful defendant – denial of liability – provision of information to plaintiff – whether conduct constituted sufficient inducement or was otherwise unreasonable - COSTS – two issues on appeal – issues severable – respondent successful on one issue – respondent ordered to pay appellant’s costs of appeal – whether order for costs should reflect respondent’s partial success

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17
Workers Compensation Act 1987 (NSW), s 151Z, Pt 5, Div 3

CATEGORY: Consequential orders

CASES CITED: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57
Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70
Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373
Gould v Vaggelas [1985] HCA 85; (1985) 157 CLR 215
James v Surf Road Nominees Pty Ltd (No 2)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWCA 304
Decision Date: 24 September 2009

CaseChat Overview and Summary

The appeal concerned the costs of proceedings in the New South Wales Court of Appeal between Bostik Australia Pty Ltd (appellant) and Mr Liddiard (first respondent), and Brolton (second respondent). The dispute arose from an appeal concerning the apportionment of liability and costs, particularly in relation to a trial and the appeal itself.

The primary legal issues before the Court of Appeal were whether the unsuccessful respondent should be held responsible for the joinder of the other respondent, and whether the conduct of the unsuccessful defendant at trial constituted a sufficient inducement or was otherwise unreasonable, impacting the costs order. Additionally, the court considered whether a costs order for an appeal with two severable issues, where the respondent was successful on one, should reflect this partial success.

The court varied the original costs order for the appeal, directing the first respondent, Mr Liddiard, to pay 40% of the appellant's costs, excluding those attributable to the apportionment between the appellant and the second respondent. The court also made orders regarding the costs of motions filed by both parties and varied the trial costs orders to reflect the judgment entered for the second defendant and the dismissal of cross-claims.

Orders

Orders of the court

(1) Vary order (3) made on 26 June 2009 so that it provides:

(3) Order the first respondent (Mr Liddiard) to pay 40% of the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.

(2) Otherwise dismiss the notice of motion of the first respondent (Mr Liddiard) filed on 9 July 2009.

(3) Order the appellant (Bostik Australia Pty Ltd) to pay 50% of the first respondent’s costs of his motion.

(4) Vary the orders made on 26 June 2009 by adding to order (2) a new paragraph (c) and making consequential amendments to paragraphs (a) and (b), so that order (2) now reads:

(2) In lieu thereof:

(a) enter judgment for the second defendant against the plaintiff;

(b) order the plaintiff to pay the second defendant’s costs of the proceedings other than those attributable to the cross-claims, and

(5) Otherwise dismiss the notice of motion filed by the appellant on 10 July 2009.

(6) Order that the appellant pay the costs of the second respondent (Brolton) of the appellant’s motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BOSTIK AUSTRALIA PTY LTD v LIDDIARD (NO 2) [2009] NSWCA 304
HEARING DATE(S):	On the papers
JUDGMENT DATE:	24 September 2009
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 1; Basten JA at 1
DECISION:	(1) Vary order (3) made on 26 June 2009 so that it provides: (3) Order the first respondent (Mr Liddiard) to pay 40% of the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent. (2) Otherwise dismiss the notice of motion of the first respondent (Mr Liddiard) filed on 9 July 2009. (3) Order the appellant (Bostik Australia Pty Ltd) to pay 50% of the first respondent’s costs of his motion. (4) Vary the orders made on 26 June 2009 by adding to order (2) a new paragraph (c) and making consequential amendments to paragraphs (a) and (b), so that order (2) now reads: (2) In lieu thereof: (a) enter judgment for the second defendant against the plaintiff; (b) order the plaintiff to pay the second defendant’s costs of the proceedings other than those attributable to the cross-claims, and (c) dismiss the cross-claims of the first and second defendants, with no order as to costs of the cross-claims. (5) Otherwise dismiss the notice of motion filed by the appellant on 10 July 2009. (6) Order that the appellant pay the costs of the second respondent (Brolton) of the appellant’s motion.

CATCHWORDS:	COSTS – costs of appeal – Sanderson Order – two respondents to appeal – both respondents necessarily joined – whether any basis upon which unsuccessful respondent could be found responsible for the joinder of other respondent - COSTS – costs of trial – Sanderson Order – plaintiff alerted to possibility of proceedings against successful defendant through conduct of unsuccessful defendant – enquiry made as to whether plaintiff contemplating proceedings against successful defendant – denial of liability – provision of information to plaintiff – whether conduct constituted sufficient inducement or was otherwise unreasonable - COSTS – two issues on appeal – issues severable – respondent successful on one issue – respondent ordered to pay appellant’s costs of appeal – whether order for costs should reflect respondent’s partial success
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17 Workers Compensation Act 1987 (NSW), s 151Z, Pt 5, Div 3
CATEGORY:	Consequential orders
CASES CITED:	Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70 Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Gould v Vaggelas [1985] HCA 85; (1985) 157 CLR 215 James v Surf Road Nominees Pty Ltd (No 2)