Mitchell v Leafs Gully Farm Pty Ltd (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mitchell v Leafs Gully Farm Pty Ltd (No 2) [2016] NSWCA 121

Hearing dates:

On the papers

Decision date:

23 May 2016

Before:

Beazley P; Leeming JA; Payne JA

Decision:

1. Subject to (3) below, the appellant (Mr Mitchell) is to pay the costs of the first respondent (LGF) of this appeal as agreed or assessed, such costs not to include amounts LGF is required to pay pursuant to (2) below.

 

2. LGF is to pay the costs of the second respondent (AGL Power) of this appeal as agreed or assessed.

 3. LGF is to pay the costs of Mr Mitchell and AGL Power in respect of the application for costs.

Catchwords:

COSTS – appellant made no submissions in relation to, and sought no orders against, one respondent to an appeal – the other respondent made contingent claim against the respondent in the event the appeal was allowed – appeal dismissed – contingent claim not addressed – whether Bullock or Sanderson order ought be made

Category:

Costs

Parties:

Richard Gordon Mitchell (Appellant)
Leafs Gully Farm Pty Ltd (First Respondent)
AGL Power Generation Pty Ltd (Second Respondent)

Representation:

Counsel:
BA Coles QC, PT Russell (Appellant)
RG McHugh SC, J Hutton (First Respondent)
AP Lo Surdo SC, DR Meltz (Second Respondent)

  Solicitors:
Ashurst Australia Lawyers (Appellant)
Gadens Lawyers (First Respondent)
Herbert Smith Freehills (Second Respondent)

File Number(s):

2015/315247

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 1460

Date of Decision:

07 October 2015

Before:

Lindsay J

File Number(s):

2014/10856

Judgment

1. THE COURT: On 3 May 2016, this Court dismissed Mr Mitchell’s appeal and directed the parties to supply within 14 days either agreed orders as to the costs of the appeal, or the orders proposed by them as to costs, any evidence in support, and short submissions: Mitchell v Leafs Gully Farm Pty Ltd [2016] NSWCA 92. There is agreement that Mr Mitchell should pay the costs of Leafs Gully Farm Pty Ltd (LGF), but a dispute as to who should pay the costs of the second respondent, AGL Power Generation Pty Ltd (AGL Power). Mr Mitchell and AGL Power submit that LGF should be ordered to pay the costs of AGL Power, while LGF submits that the Court should make either a Sanderson or a Bullock order so that the ultimate burden of AGL Power’s costs is borne by Mr Mitchell.

2. The essential background may be summarised concisely. LGF brought proceedings against Mr Mitchell, and later joined AGL Power. The issues at first instance were (considerably) broader than the issues on appeal, and led to the primary judge making a Bullock order to the effect that LGF pay AGL Power’s costs of the proceedings, and that Mr Mitchell pay LGF’s costs of the proceedings including costs payable by LGF to AGL Power. AGL Power was a necessary party to the appeal, because it had been…