Loose Fit Pty Limited v Marshbaum (No 2) - [2012] NSWCA 23

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Loose Fit Pty Limited v Marshbaum & Ors (No 2) [2012] NSWCA 23
Hearing dates: On the papers
Decision date: 06 March 2012
Before: Campbell JA, Handley AJA, Sackville AJA
Decision:
Motion of 6 December 2011
(1) Order that the costs payable by the appellant pursuant to order (1) of 30 November 2011 be paid on the ordinary basis up to and including 13 May 2011, and on the indemnity basis thereafter until 30 November 2011.
(2) The appellant to pay the costs of the motion.
Motion of 13 December 2011
(1) Order (4) of 30 November 2011 varied by adding "and 50% of the costs of the trial payable by Loose Fit Pty Ltd to the plaintiff".
(2) No order as to the costs of the motion.
[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.]

Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946
Cases Cited: Callisher v Bischoffsheim (1870) LR 5 QB 449
James Hardie & Co Pty Ltd v Wyong Shire Council [2000] NSWCA 107, 48 NSWLR 679
L. Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59, 151 CLR 590
Gould v Vagellas [1985] HCA 85, 157 CLR 271
Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Category: Costs
Parties: Loose Fit Pty Limited - Appellant
Ellen Marshbaum - First Respondent
John Francis Kocx - Second Respondent
Marea Anne Hickie - Third Respondent
Representation: Solicitors -
Walker Hedges & Co - Appellant
Terrance Stern - First Respondent

File Number(s): 2008/289559
Decision under appeal

Citation:

Marshbaum v Loose Fit Pty Ltd and Anor [2010] NSWSC 1130

Date of Decision:

2010-10-11 00:00:00

Before:

Hoeben J

File Number(s):

2008/289559

Judgment

THE COURT : The Court gave judgment in this case on 30 November 2011 [2011] NSWCA 372. It dismissed with costs the appeal by the occupier Loose Fit Pty Limited, against the judgment in favour of the plaintiff entered by Hoeben J. However its appeal against the dismissal of its cross claim against the owners for contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provision) Act 1946 was allowed.

By notice of motion of 6 December 2011 the plaintiff respondent, relying on an offer of compromise of 13 May 2011, sought an order against the appellant for the costs of the appeal payable by it to be assessed on the indemnity basis from 14 May 2011.

In the appeal against dismissal of the occupier's cross claim for contribution this Court ordered…

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.

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Details

Case: [2012] NSWCA 23
Decision Date: 06 March 2012

CaseChat Overview and Summary

In the matter of *Loose Fit Pty Limited v Marshbaum (No 2)*, the New South Wales Court of Appeal considered applications by the appellant, Loose Fit Pty Limited, to vary orders made on 30 November 2011 concerning costs. The dispute arose from earlier proceedings between Loose Fit Pty Limited and Marshbaum.

The Court was required to determine whether to vary the previous costs orders. Specifically, the appellant sought to alter the basis on which costs were to be paid and to adjust the proportion of trial costs payable by the appellant to the plaintiff. The Court also considered the costs of the motions themselves.

The Court ordered that the costs payable by the appellant pursuant to the order of 30 November 2011 be paid on the ordinary basis up to and including 13 May 2011, and on the indemnity basis thereafter until 30 November 2011. The appellant was also ordered to pay the costs of this motion. Furthermore, order (4) of 30 November 2011 was varied to include "and 50% of the costs of the trial payable by Loose Fit Pty Ltd to the plaintiff". There were no orders as to the costs of the second motion.

Orders

Orders of the court

Motion of 6 December 2011

(1) Order that the costs payable by the appellant pursuant to order (1) of 30 November 2011 be paid on the ordinary basis up to and including 13 May 2011, and on the indemnity basis thereafter until 30 November 2011.

(2) The appellant to pay the costs of the motion.

Motion of 13 December 2011

(1) Order (4) of 30 November 2011 varied by adding "and 50% of the costs of the trial payable by Loose Fit Pty Ltd to the plaintiff".

(2) No order as to the costs of the motion.

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Loose Fit Pty Limited v Marshbaum & Ors (No 2) [2012] NSWCA 23
Hearing dates:	On the papers
Decision date:	06 March 2012
Before:	Campbell JA, Handley AJA, Sackville AJA
Decision:	Motion of 6 December 2011 (1) Order that the costs payable by the appellant pursuant to order (1) of 30 November 2011 be paid on the ordinary basis up to and including 13 May 2011, and on the indemnity basis thereafter until 30 November 2011. (2) The appellant to pay the costs of the motion. Motion of 13 December 2011 (1) Order (4) of 30 November 2011 varied by adding "and 50% of the costs of the trial payable by Loose Fit Pty Ltd to the plaintiff". (2) No order as to the costs of the motion. [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.]
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946
Cases Cited:	Callisher v Bischoffsheim (1870) LR 5 QB 449 James Hardie & Co Pty Ltd v Wyong Shire Council [2000] NSWCA 107, 48 NSWLR 679 L. Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59, 151 CLR 590 Gould v Vagellas [1985] HCA 85, 157 CLR 271 Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Category:	Costs
Parties:	Loose Fit Pty Limited - Appellant Ellen Marshbaum - First Respondent John Francis Kocx - Second Respondent Marea Anne Hickie - Third Respondent
Representation:	Solicitors - Walker Hedges & Co - Appellant Terrance Stern - First Respondent
File Number(s):	2008/289559
Decision under appeal	Citation: Marshbaum v Loose Fit Pty Ltd and Anor [2010] NSWSC 1130 Date of Decision: 2010-10-11 00:00:00 Before: Hoeben J File Number(s): 2008/289559