Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd (No 2)

New South Wales

Court of Appeal

CITATION:	Stuart Pty Limited v Condor Commercial Insulation Pty Limited (No 2) [2006] NSWCA 379
HEARING DATE(S):	On written submissions
JUDGMENT DATE:	20 December 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 1; Tobias JA at 1
DECISION:	The parties are to bring in short minutes of order to accord with these reasons and with the reasons in Stuart Pty Limited v Condor Commercial Insulation Pty Limited [2006] NSWCA 334, to be filed in the Registry by 22 January 2007.
CATCHWORDS:	COSTS – application by respondent for indemnity costs – whether some good cause to depart from ordinary rule of costs following the event – offer of compromise made by respondent prior to trial but not later renewed – appellant abandoned certain arguments on appeal
LEGISLATION CITED:	District Court Rules 1973 (NSW) Pt 19A, Pt 39A Supreme Court Rules 1970 (NSW) Pt 52A r 11 Uniform Civil Procedure Rules 2005 (NSW) r 42.1
CASES CITED:	Baresic v Slingshot Holdings Pty Limited & Anor (No 2) [2005] NSWCA 160 Brymount Pty Limited t/as Watson Toyota v Cummins & Anor (No 2) [2005] NSWCA 69 Fotheringham v Fotheringham [No 2] (1999) 46 NSWLR 194; [1999] NSWCA 21 Hadley v Baxendale (1854) 9 Ex 341 Moore v Woodforth (No 2) [2003] NSWCA 46 Oshlack v Richmond River Council (1998) 193 CLR 72 South Sydney Council v Morris (No 3) [2001] NSWCA 200
PARTIES:	Stuart Pty Limited (Appellant) Condor Commercial Insulation Pty Limited (Respondent)
FILE NUMBER(S):	CA 40455/05
COUNSEL:	J West QC; J Stephenson (Appellant) B Coles QC; P Barham (Respondent)
SOLICITORS:	Watson Mangioni (Appellant) Turnbull Bowles (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7817/1999
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	6 May 2005

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CA 40455/05

BEAZLEY JA
IPP JA
TOBIAS JA

20 December 2006

STUART PTY LIMITED

v

CONDOR COMMERCIAL INSULATION PTY LIMITED (No 2)

Judgment

1 THE COURT: The Court delivered judgment in this matter on 28 November 2006, in which it made an order dismissing the appeal. Prior to the delivery of judgment, the Court was requested by the solicitors for the respondent not to make an order for costs without the parties having an opportunity of making submissions in relation to costs. The Court thus directed the parties to file written submissions in relation to costs. The parties have now provided those written submissions. Relevantly, the respondent seeks an order for indemnity costs.

2 The appellant concedes that as it was unsuccessful on the appeal, costs should follow the event and that it should pay the respondent’s costs of the appeal other than costs relating to the Notice of Contention.

3 The respondent, for its part, concedes that in the usual course, some adjustment to any costs order would need to take account of the fact that it did not proceed with its Notice of Contention. It contends, however, that it otherwise should have an indemnity costs…