Matar v Jones (No 2)

[2011] NSWCA 336

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Matar v Jones (No 2) [2011] NSWCA 336

Hearing dates:

On the papers

Decision date:

08 November 2011

Before:

Beazley JA at [1]
Giles JA at [2]
Macfarlan JA at [3]

Decision:

(1) Judgment and costs orders in the District Court set aside.

(2) Judgment for the appellant against the respondent in the sum of $275,273.

(3) No order as to the costs of the District Court proceedings.

[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 - costs of appeal - no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Category:

Costs

Parties:

Ezat Ahmed Matar (Appellant)
Renee Jones (Respondent)

Representation:

Counsel:
B Gross QC/T J Boyd (Appellant)
G J Bellew SC/N Ghabar (Respondent)
Solicitors:
Lough Wells Duncan (Appellant)
Dibbs Barker (Respondent)

File Number(s):

CA 2009/339874

 Decision under appeal 

Citation:

Matar v Jones

Date of Decision:

2010-05-04 00:00:00

Before:

Delaney DCJ

File Number(s):

DC 19/09

Judgment

1. BEAZLEY JA : I agree with Macfarlan JA.

1. GILES JA : I agree with Macfarlan JA.

1. MACFARLAN JA : Judgment on this appeal was delivered on 31 August 2011 ([2011] NSWCA 304). Various orders were made at that time, including that the respondent pay the appellant's costs of the appeal. The parties were given an opportunity to lodge a form of consent order identifying the additional orders that they considered should be made to give effect to the Court's judgment or, if they could not agree, to lodge written submissions.

1. The parties are in agreement other than in relation to the appropriate order in respect of the costs of the appeal.

1. The respondent submits that as the appellant succeeded on only one of a number of issues raised by his Notice of Appeal, the respondent should only be ordered to pay one-half of the appellant's costs of the appeal. However by his appeal the appellant obtained a substantial increase in the judgment in his favour ($156,833 to $275,273). The fact that he did not succeed on a number of his arguments does not mean that his appeal should not be regarded as successful. In my view none of the issues upon which the appellant lost qualify as "dominant or separable" in the sense referred to in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. Accordingly the costs order made on 31 August 2011 should not be varied.

1. As the respondent's application for variation in any event fails it is unnecessary to consider whether the application fell outside the leave reserved to the parties and was therefore incompetent in the absence of the respondent filing a notice of motion in accordance with Uniform Civil Procedure Rules r 36.16.

1. To give effect to the parties' agreement as to the further orders that should be made, I propose that the Court make the following orders, additional to those made on 22 September 2011.

(1) Judgment and costs orders in the District Court set aside.

(2) Judgment for the appellant against the respondent in the sum of $275,273.

(3) No order as to the costs of the District Court proceedings.

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