Nutectime International Pty Ltd v Timentel Pty Ltd

Nutectime International Pty Ltd and others (the appellants) sought to vary orders made on appeal, specifically concerning a costs order. The fourth respondent on the appeal, Francis Joseph Frasca, had filed a submitting appearance on the appeal. The appeal had been allowed with costs, but the original orders did not explicitly exclude Mr Frasca from liability for those costs. The appellants sought to enforce the costs order against him.

The primary legal issue before the Court of Appeal was whether the costs order made on the appeal should be varied to specify that it was made against the first to third respondents only, thereby excluding Mr Frasca from liability. A secondary issue arose concerning Mr Frasca's entitlement to costs of the motion he filed.

The Court determined that it had the power to vary its orders under UCPR rule 36.17 and its inherent jurisdiction. It reasoned that Mr Frasca's submitting appearance indicated he did not intend to contest the appeal and therefore should not be held liable for the costs awarded to the successful appellants. The Court also considered Mr Frasca's entitlement to his own costs of the motion, noting that the appellants and other respondents were ordered to pay those costs.

The Court ordered that the original costs order be varied to specify it was made against the first to third respondents. It further ordered that the appellants pay Mr Frasca a sum of $19,968.24 plus interest, and that the appellants and the second and third respondents jointly and severally pay Mr Frasca's costs of the motion. The Registrar was also directed to refer the terms of the final paragraph of the reasons to the Law Society of New South Wales.