The Council of the City of Sydney v Woodward (No 2)

[2000] NSWCA 348

CITATION:	The Council of the City of Sydney v Woodward (No 2) [2000] NSWCA 348
FILE NUMBER(S):	CA 40956/98
HEARING DATE(S):	Decided on written submissions
JUDGMENT DATE:	30 November 2000
PARTIES :	The Council of the City of Sydney (Appellant) Robert Woodward (First Respondent) Hassell Pty Ltd (Second Respondent)
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CL 55060/97
LOWER COURT JUDICIAL OFFICER :	Einstein J

COUNSEL:
SOLICITORS:	A Wallis (Appellant) F P Bannan (First Respondent)
DECISION:	See paragraph 11

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40956/98
CL 55060/97

PRIESTLEY JA
MEAGHER JA
HEYDON JA

30 November 2000

THE COUNCIL OF THE CITY OF SYDNEY v
ROBERT WOODWARD & ANOR (No 2)


JUDGMENT (On costs)

1    PRIESTLEY JA: I agree with the costs orders proposed by Heydon JA, and with his reasons.

2    MEAGHER JA: I agree with Heydon JA.

3    HEYDON JA: Pursuant to directions given when reasons were published on 7 August 2000, the parties have filed written submissions concerning the formal orders to be made, including orders as to costs of the appeal. On other questions they are agreed that the only change to the orders made below is that in order 1 of the orders of the trial court, dated 2 November 1998, the amount of $575,066 should be substituted for $733,010.

4    On costs, the appellant contended that there were three issues on the hearing of the appeal - the letter of demand issue, the design 4 budget issue and the interest issue. As the first respondent agreed, the appellant submitted that little time was devoted to interest and most of the hearing time to the two other issues, in about equal shares.

5    The appellant submitted that since it had reduced the first respondent’s award of $773,010 by $197,994, and since if all grounds of appeal had succeeded, it would have reduced the award by $459,000, it could be said to have succeeded on the appeal to the extent of 43 percent. It submitted that there should be an order that the first respondent pay 50 percent of the appellant’s costs.

6    The first respondent, on the other hand, submitted that:

(a) an issue to do with Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 was abandoned at the hearing, but costs were incurred in preparing for argument on that issue; and

(b) the budget figure in relation to design 4 on which it succeeded was not put forward until the hearing, and then only as one possibility. Indeed it was not advanced at the trial.

7    The first respondent submitted that the various issues were separate. He submitted that the appellant had succeeded in relation to one-third of the appeal and since the point on which it had succeeded was not argued below the appropriate order was that the Council pay two-thirds of the first respondent’s costs.

8    Both parties offered a copious citation of authorities. It is unnecessary to analyse the cases referred to. The decision to be made is a discretionary decision, turning on questions of judgment in relation to the particular circumstances of this appeal.

9    It is clear that the appellant should not have to pay all the first respondent’s costs: it enjoyed a measure of success on one issue which was significant in money terms. It is also clear that the first respondent should not have to pay all the appellant’s costs in view of his success on all other issues and his preservation of the bulk of what he gained from the trial judge. One possibility is an order that the first respondent pay the costs of the appellant on the issue on which the appellant succeeded and that the appellant pay the costs of the first respondent on the issues on which he succeeded.

10    However, an order which conforms substantially to the justice of the case is that the appellant pay half the first respondent’s costs. That appears to me to reflect the balance of success and failure and the belated selection of the budget figure for design 4 on which it succeeded.

11    I propose the following orders, additional to the order allowing the appeal which has already been made.

1. The sum of $575,066 be substituted for $773,010 in order 1 of the orders of the Court dated 2 November 1998, entered on 30 November 1998.

2. The appellant to pay 50 percent of the first respondent’s costs of the appeal.

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