Herning v GWS Machinery Pty Ltd (No 2)

CITATION:	Herning v GWS Machinery Pty Ltd [No. 2] [2005] NSWCA 375
HEARING DATE(S):	03/05/05
JUDGMENT DATE:	3 November 2005
JUDGMENT OF:	Handley JA; Beazley JA; Basten JA
DECISION:	1. Variation of orders with respect to costs refused; 2. Each party to bear its own further costs incurred after the date of judgment, namely 15 August 2005.

CASES CITED:	Calderbank v Calderbank [1975] 3 All ER 333 Herning v GWS Machinery Pty Ltd [2005] NSWCA 263 Leichhardt Municipal Council v Green [2004] NSWCA 341 Townsend v Townsend (No 2) [2001] NSWCA 145
PARTIES:	Scott Herning (Appellant) GWS Machinery Pty Ltd (First Respondent) Jarrett Implements Pty Ltd (Second Respondent)
FILE NUMBER(S):	CA 40237/04
COUNSEL:	S. Norton SC/M. Fraser (Appellant) L. King SC/S. Bliim (Respondent)
SOLICITORS:	Brydens Law Office (Appellant) Moray & Agnew (First Respondent) Abbott Tout (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13468/01
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ

CA 40237/04
DC 13468/01

HANDLEY JA
BEAZLEY JA
BASTEN JA

3 November 2005

SCOTT HERNING v GWS MACHINERY PTY LTD & ANOR [NO. 2]

Judgment

1 THE COURT: On 15 August 2005 the Court allowed the appeal in this matter, in part, and made orders in lieu of those made by the District Court on 10 March 2004. In effect, and subject to a reduction for contributory negligence, the Court upheld the Appellant’s claim that the First Respondent (the first defendant in the proceedings below) was liable in negligence for the injury suffered by the Appellant (the plaintiff in the proceedings below). The Appellant was unsuccessful against the Second Respondent. The Second Respondent was therefore entitled to its costs of the appeal.

2 No submissions having been addressed to this question, the Court left open in its earlier judgment the question whether the Second Respondent’s costs of the appeal should be paid by the Appellant, or by the First Respondent: [2005] NSWCA 263 at [40]. Submissions have now been received from the Appellant seeking a Bullock order, but offering by way of support nothing to suggest that the continued persistence against the Second Respondent, by way of appeal, amounted to more than an overcautious approach by the Appellant, in circumstances where the conduct of the First Respondent could not be said to warrant continued proceedings against the Second Respondent. Accordingly the proposed order should stand, namely that the Appellant pay the Second Respondent’s costs of the appeal. The First Respondent was ordered to pay the Appellant’s costs of the appeal, but it was noted that those costs were not intended to include any costs the Appellant was required to pay to the Second Respondent: [2005] NSWCA 263 at [42]. There is no reason to depart from this conclusion.

3 As a separate matter, the Second Respondent sought payment of its costs on an indemnity basis. Support for such an order was said to rest on a letter sent by the solicitors for the Second Respondent on 11 January 2005 offering to settle the appeal on the…