Goulding v Kirby - [2003] NSWCA 214

CITATION: Goulding v Kirby [2003] NSWCA 214

HEARING DATE(S): 23 September 2002

JUDGMENT DATE:
5 August 2003

JUDGMENT OF: Hodgson JA at 1; Santow JA at 2

DECISION: (1) The claimants (being the appellants) pay the opponent's (being the respondent's) costs of the summons for leave to appeal (CA 40728/02) on a party/party basis, and in addition pay the costs of the appeal (CA 41078/01) including the hearing on 23 September 2002 and the appearance on 9 December 2002, but not including the costs in (2) below; and (2) The opponent (being the respondent) pay so much of the claimants' (being the appellants') costs of the appeal (CA 41078/01) as is limited to the preparation of the red and orange books and pay the claimants' (Gouldings') costs of and incidental to the Notice of Motion filed on 10 July 2002; (3) No order is made as to costs pertaining to the submissions concerning costs.

CATCHWORDS: COSTS - leave to appeal refused - appeal treated as incompetent - in the interim between the hearing and the determining of costs one of the original judges resigned from the Court of Appeal - s45AA consent given by the parties to the two remaining Judges of Appeal determining the matter - written submissions on costs - respondents challenged the competency of the appeal - letter of offer of 29 July 2002 referred to not claiming costs on the appeal but silent on costs of the application for leave to appeal - letter came too late to justify indemnity costs - competency of appeal challenged outside the time allowed pursuant to Pt 51 r27 SCR - respondent in absence of any order otherwise therefore disentitled to any costs when appeal treated as incompetent whether Court should make an order otherwise ordering - appellants' material for appeal prepared prior to challenge - duplication in need for preparation of material for concurrent application for leave to appeal and appeal.

LEGISLATION CITED: Supreme Court Act s45AA
Supreme Court Rules Pt 51 r27

CASES CITED: Carolan v AMF Bowley Pty Ltd t/as Bennetts Bowling Green (NSWCA, 16 November 1995, unreported)
Falamaki v Wollongong City Council [2001] NSWCA 55
Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38

PARTIES :
Leonard Charles GOULDING Ruth GOULDING (Appellants)
Robert Raymond KIRBY (Respondent)

FILE NUMBER(S): CA 41078/01; 40728/02

COUNSEL: A Ogborne (Appellants)
J Coombs, QC/ G Ellis (Respondent)

SOLICITORS: The Bruce Stewart Commercial Practice (Appellants)
Colin Biggers & Paisley (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC7012/00

LOWER COURT
JUDICIAL OFFICER : Certoma AJ

CA 41078/01
CA 40728/02
DC 7012/00

HODGSON JA
SANTOW JA
5 AUGUST 2003

Leonard Charles GOULDING & Anor -v- Robert Raymond KIRBY

Judgment

1 HODGSON JA: I agree with Santow JA.

2 SANTOW JA:

INTRODUCTION

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.

Continue reading Goulding v Kirby

Details

AGLC: Goulding v Kirby [2003] NSWCA 214
Case: [2003] NSWCA 214
Decision Date: 5 August 2003

CaseChat Overview and Summary

In *Goulding v Kirby*, the claimants (appellants) and the opponent (respondent) appeared before Hodgson and Santow JJA of the Court of Appeal. The dispute concerned the costs of an appeal and an application for leave to appeal, following the Court of Appeal's decision to treat the appeal as incompetent.

The primary legal issues before the Court were whether the respondent was entitled to costs of the appeal, given the appeal was treated as incompetent and the respondent had challenged its competency outside the prescribed time limit. The Court also had to consider the effect of a letter of offer made by the respondent regarding costs and whether to make any order otherwise than that the respondent, having challenged the competency of the appeal late, would be disentitled to costs.

The Court reasoned that the respondent's challenge to the competency of the appeal, though late, was ultimately successful in leading to the appeal being treated as incompetent. Despite the lateness of the challenge, the Court found that the respondent was not entirely disentitled to costs. The letter of offer, which did not explicitly waive costs for the application for leave to appeal, was deemed too late to justify indemnity costs. The Court also acknowledged the duplication in preparing appeal materials, which had been prepared before the competency challenge.

Consequently, the Court ordered that the claimants pay the opponent's costs of the summons for leave to appeal and the costs of the appeal, with specific exclusions. The opponent was ordered to pay a portion of the claimants' costs of the appeal, limited to the preparation of certain documents, and the claimants' costs of a specific notice of motion. No order was made as to the costs of the submissions concerning costs.

Orders

Orders of the court

(1) The claimants (being the appellants) pay the opponent's (being the respondent's) costs of the summons for leave to appeal (CA 40728/02) on a party/party basis, and in addition pay the costs of the appeal (CA 41078/01) including the hearing on 23 September 2002 and the appearance on 9 December 2002, but not including the costs in (2) below; and (2) The opponent (being the respondent) pay so much of the claimants' (being the appellants') costs of the appeal (CA 41078/01) as is limited to the preparation of the red and orange books and pay the claimants' (Gouldings') costs of and incidental to the Notice of Motion filed on 10 July 2002; (3) No order is made as to costs pertaining to the submissions concerning costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Goulding v Kirby [2003] NSWCA 214
HEARING DATE(S):	23 September 2002
JUDGMENT DATE:	5 August 2003
JUDGMENT OF:	Hodgson JA at 1; Santow JA at 2
DECISION:	(1) The claimants (being the appellants) pay the opponent's (being the respondent's) costs of the summons for leave to appeal (CA 40728/02) on a party/party basis, and in addition pay the costs of the appeal (CA 41078/01) including the hearing on 23 September 2002 and the appearance on 9 December 2002, but not including the costs in (2) below; and (2) The opponent (being the respondent) pay so much of the claimants' (being the appellants') costs of the appeal (CA 41078/01) as is limited to the preparation of the red and orange books and pay the claimants' (Gouldings') costs of and incidental to the Notice of Motion filed on 10 July 2002; (3) No order is made as to costs pertaining to the submissions concerning costs.
CATCHWORDS:	COSTS - leave to appeal refused - appeal treated as incompetent - in the interim between the hearing and the determining of costs one of the original judges resigned from the Court of Appeal - s45AA consent given by the parties to the two remaining Judges of Appeal determining the matter - written submissions on costs - respondents challenged the competency of the appeal - letter of offer of 29 July 2002 referred to not claiming costs on the appeal but silent on costs of the application for leave to appeal - letter came too late to justify indemnity costs - competency of appeal challenged outside the time allowed pursuant to Pt 51 r27 SCR - respondent in absence of any order otherwise therefore disentitled to any costs when appeal treated as incompetent whether Court should make an order otherwise ordering - appellants' material for appeal prepared prior to challenge - duplication in need for preparation of material for concurrent application for leave to appeal and appeal.
LEGISLATION CITED:	Supreme Court Act s45AA Supreme Court Rules Pt 51 r27
CASES CITED:	Carolan v AMF Bowley Pty Ltd t/as Bennetts Bowling Green (NSWCA, 16 November 1995, unreported) Falamaki v Wollongong City Council [2001] NSWCA 55 Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38
PARTIES :	Leonard Charles GOULDING Ruth GOULDING (Appellants) Robert Raymond KIRBY (Respondent)
FILE NUMBER(S):	CA 41078/01; 40728/02
COUNSEL:	A Ogborne (Appellants) J Coombs, QC/ G Ellis (Respondent)
SOLICITORS:	The Bruce Stewart Commercial Practice (Appellants) Colin Biggers & Paisley (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC7012/00
LOWER COURT JUDICIAL OFFICER :	Certoma AJ