Cassegrain v Cassegrain (No 2)

[2008] NSWSC 360

CITATION:	Cassegrain v Cassegrain (No 2) [2008] NSWSC 360
HEARING DATE(S):	18 April 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	18 April 2008
DECISION:	Defendant ordered to pay plaintiff's costs.
CATCHWORDS:	PROCEDURE - Costs - Appeal to Supreme Court instead of Court of Appeal - Order removing the matter into the Court of Appeal under Supreme Court Act 1970, s 51(1) - Whether costs should follow decisions of Court of Appeal - Plaintiff put defendant on notice that he would argue appeal to Supreme Court incompetent
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of Late FA Grotto & Ors [2007] NSWSC 1080
PARTIES:	Denis Cassegrain (Plaintiff) Gerard Cassegrain & Co Pty Ltd (Defendant)
FILE NUMBER(S):	SC 4640/06
COUNSEL:	Mr G Colyer (Plaintiff) Mr C Bevan (Defendant)
SOLICITORS:	McCabe Terrill Lawyers Pty Ltd (Plaintiff) Evangelos Patakas & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 18 APRIL 2008

4640/06 DENIS CASSEGRAIN v GERARD CASSEGRAIN & CO PTY LTD (NO 2)

EX TEMPORE JUDGMENT

1 Consequent upon my publishing my reasons for judgment, I directed the parties to bring in short minutes of order, including an order for the removal of the matter into the Court of Appeal under the Supreme Court Act 1970, s 51(1) as Bryson AJ had done in Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of Late FA Grotto & Ors [2007] NSWSC 1080.

2 The matter of contention between the parties as to the appropriate orders I should now make centres upon the question of costs. In Coric, Bryson AJ ordered that the costs of the proceedings before him follow and be paid in accordance with any order for costs to be made by the Court of Appeal upon the application for leave to appeal or on any appeal.

3 The defendant submits that a like order should be made by me on the basis that there is no essential difference between this case and the one considered by Bryson AJ. The Supreme Court Act 1970, s 51(1) treats the application for leave to appeal as having been “for all purposes well commenced” by the filing of the defendant's notice of motion, it is submitted.

4 On the other hand, reference is made to the concession in the defendant’s outline of submissions on the motion before me that the plaintiff had given notice of two grounds upon which it argued that the application was incompetent, the objection being upheld by me.

5 It appears from the decision in Coric at [1] that neither side had adverted to the question of competence of the appeal before Bryson AJ. His Honour sought further submissions from both sides on the point.

6 Furthermore, there was in Coric a determination by his Honour of his own motion to refer the matter for mediation, a circumstance that does not exist in the instant circumstances.

7 In my view, the ordinary order for costs following the event should be made. I am strengthened in that resolve by the circumstances to which I have adverted, that the plaintiff had given the defendant notice that it regarded the defendant's proceedings as incompetent.

8 I make orders in terms of the short minutes of order proffered by the plaintiff, initialled by me, dated by me and placed with the papers.

**********