Current Images Pty Limited v Dupack Pty Limited (No 2)

[2012] NSWCA 256

Court of Appeal

New South Wales

Case Title:

Current Images Pty Limited v Dupack Pty Limited (No 2)

Medium Neutral Citation:

[2012] NSWCA 256

Hearing Date(s):

30 November 2011

Decision Date:

20 August 2012

Jurisdiction:

Before:

Bathurst CJ at [1];  Macfarlan JA at [10];  Sackville AJA at [11]

Decision:

Vary Orders 3 and 4 of the orders made on 20 April 2012 substituting the following:

3 Judgment for the appellant against the respondent for $157,947 together with interest in the sum of $41,655.83.

4 Order that the respondent pay the appellant's costs of the appeal and the proceedings in the court below.

[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 - general rule that costs follow event - trial costs - appeal costs
COSTS - assessment - interest - up to judgment

Legislation Cited:

Civil Procedure Act 2005 s 100

Cases Cited:

Fitzgerald v Masters (1955) 95 CLR 420

Texts Cited:

Category:

Costs

Parties:

Current Images Pty Limited (Appellant)
Dupack Pty Limited (Respondent)

Representation

- Counsel:

Counsel
Mr M Ashhurst SC with Mr S Ipp (Appellant)
Mr E White (Respondent)

- Solicitors:

Solicitors
Macquarie Legal Practice (Appellant)
Dominic Stamfords (Respondent)

File number(s):

2011/115646

Decision Under Appeal

- Court / Tribunal:

- Before:

O'Toole DCJ

- Date of Decision:

11 March 2011

- Citation:

- Court File Number(s)

3883/2009

Publication Restriction:

JUDGMENT

1. BATHURST CJ: By judgment dated 20 April 2012, the Court allowed this appeal and entered judgment for the appellant against the respondent in the sum of $157,947. The Court directed the parties to make submissions on the amount of interest payable on the judgment and the question of costs: Current Images Pty Ltd v Dupack Pty Ltd [2012] NSWCA 99.

Interest

1. The appellant contended it was entitled to interest under s 100 of the Civil Procedure Act 2005 from 22 April 2009. It calculated the interest up to and including 20 April 2012 in an amount of $41,655.83. The respondent did not dispute this calculation.

Costs

1. The principal issue in the proceedings was whether what was described as the HP Indigo Drupa Pricing Conditions ("the pricing conditions") were incorporated into the agreement between the parties relating to the purchase of an HP Indigo 4,500 Digital Offset Press ("the Agreement"). The issue is summarised in par [3] of my judgment of 20 April 2012 ("the primary judgment") with which the other members of the Court agreed.

2. In the primary judgment I concluded (at [50]) that, having regard to the inconsistencies which would arise if the pricing conditions were incorporated, it was necessary to disregard their apparent incorporation on a literal reading of the Agreement. As a consequence I concluded that the conditions did not form part of the Agreement. Alternatively I concluded (at [51]) that if they were incorporated they should be disregarded to the extent they conflicted with the expressly agreed terms of the contract. As a consequence the appellant was entitled to succeed.

3. The respondent contended that the matters raised in pars [50] and [51] of the primary judgment were not argued by the appellant at first instance. As a consequence the Court determined that the issue of costs should be deferred pending further submissions.

4. In its written submissions, the appellant contended that whilst the decision in Fitzgerald v Masters (1955) 95 CLR 420 was not cited to the primary judge, it was submitted before her that the pricing conditions were not incorporated into the Agreement. The respondent contended that this was only raised in oral submissions at the conclusion of the trial and that the case presented during the course of the trial was that the Agreement as ultimately entered into had become unconditional.

5. However, the respondent acknowledged that the second basis on which I concluded that the appellant should succeed (see [51] of the primary judgment) was put to the trial judge.

6. Having regard to the fact that at least the second basis on which the appellant was entitled to succeed was put to the trial judge, it does not seem open to submit that a different course may have been followed at the trial and on appeal than that which was in fact adopted. In these circumstances, there does not seem to me to be any reason to deprive the appellant either of its costs of the appeal or the costs of the proceedings below.

7. In these circumstances, I would vary Orders 3 and 4 of the orders made on 20 April 2012 substituting the following:

   3Judgment for the appellant against the respondent for $157,947 together with interest in the sum of $41,655.83.

   4Order that the respondent pay the appellant's costs of the appeal and the proceedings in the court below.

8. MACFARLAN JA: I agree with Bathurst CJ.

9. SACKVILLE AJA: I agree with the Chief Justice.

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