Leda Pty Ltd v Weerden (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Leda Pty. Limited v. Weerden & Anor. (No.2) [2007]  NSWCA 283

FILE NUMBER(S):
40231/06

HEARING DATE(S):            Matter dealt with on written submissions in Chambers

JUDGMENT DATE: 15 October 2007

PARTIES:
Leda Pty. Limited - appellant
John Weerden - respondent/cross-appellant
Leisure Management Pty. Limited - cross-respondent

JUDGMENT OF:      Hodgson JA McColl JA Handley AJA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):        ED 3503/05

LOWER COURT JUDICIAL OFFICER:     Gzell J

COUNSEL:

SOLICITORS:
Paul Bard Lawyers, Sydney for appellant and cross-respondent
Blake Dawson Waldron Lawyers, Sydney for respondent/cross-appellant

CATCHWORDS:
COSTS - Offer of compromise below rejected - Offer of compromise on appeal also rejected - Indemnity costs of appeal extends to period before offer made where offer also made below
ASSESSMENT OF COSTS - Interest - Where only part of the total costs are awarded - Interest calculated in same proportion as costs allowed to total costs

LEGISLATION CITED:

CASES CITED:
Lahoud v. Lahoud [2006] NSWSC 126

DECISION:
The Court makes the following additional orders:3. Costs of the appeal to be assessed on an indemnity basis.4. In this order: X equals the total amount of costs and disbursements paid or liable to be paid to the respondent's legal advisers in connection with these proceedings; Y equals the total amount of costs and disbursements allowed on assessment to the respondent in connection with these proceedings; and The Allowed Percentage equals ((Y/X) x 100)%. Appellant to pay to the respondent interest on costs and disbursements, at the rates set out in Schedule 5 to the Uniform Civil Procedure Rules, on the Allowed Percentage of each amount for or on account of costs and disbursements actually paid to his legal advisers by or on behalf of the respondent, from the date of payment of each such amount until the first to occur of: (a) such time as the appellant has paid the costs due to the respondent under order 3 above, or (b) any further order relating to interest on costs in these proceedings. 5. Reserve liberty to apply on 7 days' notice for any further order pursuant to paragraph 4(b).

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40231/06
ED 3503/05

HODGSON JA
McCOLL LJA
HANDLEY AJA

Monday 15 October 2007

LEDA PTY. LIMITED V. WEERDEN & ANOR. (NO.2)

Judgment

1. THE COURT:  On 18 July 2007, the Court of Appeal gave judgment in which it dismissed Leda’s appeal with costs, and dismissed Mr. Weerden’s cross-appeal with no order as to costs. 

2. Pursuant to directions given on that day, Mr. Weerden has applied for orders that his costs be assessed on an indemnity basis, and that there be interest on costs and disbursements from the time they were paid. 

3. Mr. Weerden had made an offer of compromise below, in substance that there be a verdict for Mr. Weerden with each party bearing its own costs.  Following the first instance judgment given on 29 March 2006 and the bringing…