McCallum (aka Hain) v National Australia Bank Ltd (No 2)

[2000] NSWCA 234

CITATION:	McCallum (aka Hain) v National Australia Bank Ltd (No 2) [2000] NSWCA 234
FILE NUMBER(S):	CA 40236/00
HEARING DATE(S):	Decided on written submissions
JUDGMENT DATE:	25 August 2000
PARTIES :	Wendy McCallum (aka Wendy Hain) (Appellant) National Australia Bank Ltd (Respondent)
JUDGMENT OF:	Sheller JA at 1; Fitzgerald JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	10265/99
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL:	S Kaur-Bains (Appellant)
SOLICITORS:	Jackson Smith (Appellant)
DECISION:	See para 6

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40236/00
CL 10265/99

SHELLER JA
FITZGERALD JA
HEYDON JA

25 August 2000

McCALLUM (aka HAIN) v NATIONAL AUSTRALIA
BANK LTD (No 2)
JUDGMENT (On Costs)

1    SHELLER JA: I agree with Heydon JA.

2    FITZGERALD JA: I agree with Heydon JA.

3    HEYDON JA: The appellant, pursuant to leave requested and granted when judgment was delivered on 17 August 2000, has filed written submissions contending that despite the dismissal of the appeal, there ought to be no order as to costs. The starting point of these submissions is that though the Court of Appeal affirmed the decision of Master Harrison, it did so on grounds different from those relied on by the Master.

4    In my opinion the reasoning of this Court was not sufficiently different from that of Master Harrison to justify any special order as to costs. Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359, in which Dixon J delivered the leading judgment concurred in by Starke J, McTiernan J and in substance Evatt J, was central to the approaches of both the Master and this Court.

5    I would dismiss the application that there be no order as to costs with costs.

6    The order of the court as to the costs of the appeal should thus be that the appellant pay the respondent’s costs (including the costs of this application).

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