Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2)

The New South Wales Court of Appeal, comprising Stern and Ball JJA and Griffiths AJA, considered an application concerning costs and the scope of a retrial in proceedings between Netdeen Pty Ltd t/as GJ Gardner Homes (the appellant) and Lindfield NSW Pty Ltd (the respondent). The appeal had resulted in a partial success for the appellant, with a retrial ordered.

The court was required to determine the appropriate orders for the costs of the appeal, the costs of the initial trial before Elkaim AJ, and whether to grant leave for the parties to lead further evidence or reopen aspects of their case at the retrial. Specifically, the court had to consider whether to depart from the usual rule regarding costs of an appeal where there was partial success, and whether the costs of the first trial should be treated as costs in the cause.

The Court of Appeal ordered that each party bear its own costs of the appeal, departing from the usual rule due to the mixed success. The costs of the proceedings before Elkaim AJ were made costs in the cause. Crucially, the court granted leave for the defendant to reopen its case to lead further oral evidence from specific individuals on the issue of breach of clause 4.7, as construed by the Court of Appeal in its earlier judgment. Leave was also granted for the plaintiff to recall those witnesses for further cross-examination on that issue. Furthermore, the parties were granted leave to lead additional evidence from their respective expert witnesses concerning a specific prior order, with leave for cross-examination of the opposing expert. Otherwise, the retrial was to proceed on the basis of the existing case materials, including pleadings, affidavits, documentary evidence, rulings, oral evidence, cross-examinations, and any concessions made.