Trad v Harbour Radio Pty Ltd - [2016] NSWCA 80

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
Hearing dates: 11 April 2016
Decision date: 18 April 2016
Before: McColl JA at [1];
Basten JA at [2];
Ward JA at [53]
Decision:
(1)   The applicant be granted an extension of time up to 18 August 2015 within which to serve his application for leave to appeal.

(2)   Grant leave to appeal and direct that within seven days the appellant file his draft notice of appeal dated 14 August 2014.

(3)   Allow the appeal and set aside the orders made by Wilson J on 2 March 2015; in place thereof:

(a)   set aside the judgment entered on 29 January 2015;
(b)   order that Harbour Radio pay 50% of Mr Trad’s costs in the Common Law Division.

(4)   On the motion filed by Harbour Radio, order that the plaintiff pay the defendant’s costs of the trial to be assessed on the ordinary basis up to 5 November 2007 and thereafter on an indemnity basis.
(5)   Each party pay its own costs of the proceedings in this Court.
Catchwords:
COSTS – appeal – civil – interpretation of orders as to costs – validity of certificate of costs assessor – status of certificate where enforcement of costs order stayed pending outcome of appeal

PRACTICE AND PROCEDURE – judgments – orders for costs of trial set aside on appeal – remitter from High Court – no subsequent order made – whether new order can be made as to costs of trial under slip rule, Uniform Civil Procedure Rules 2005 (NSW), r 36.17 – whether court can make further order which should have been made when judgment delivered
JUDGMENTS AND ORDERS – judgment based on certificate of costs assessor – order for costs set aside – whether certificate of assessment invalid – whether certificate can form basis of new judgment if further order made for payment of same costs
Legislation Cited: Civil Procedure Act 2005 (NSW), s 133
Legal Profession Act 2004 (NSW), ss 368, 373, 384
Uniform Civil Procedure Rules 2005 (NSW); rr 36.10, 36.17; Pt 36, Div 4
Cases Cited: Commonwealth of Australia v McCormack (1984) 155 CLR 273; [1984] HCA 57
Doyle v Hall Chadwick [2007] NSWCA 159
Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44
L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] (1983) 151 CLR 590; [1982] HCA 59
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 2] (1988) 62 ALJR 151; [1988] HCA 2
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41
Trad v Harbour Radio Pty Ltd [2011] NSWCA 61
Trad v Harbour Radio Pty Ltd [2013] NSWCA 477
Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227
Texts Cited: Current Topics: ‘Deemed’ – an Overworked Drafting Expression?” (1977) 51 ALJ 229 (JG…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCA 80
Decision Date: 18 April 2016

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned the interpretation and validity of costs orders made in proceedings between Mr Trad (the applicant/appellant) and Harbour Radio Pty Ltd (the respondent/defendant). The dispute arose from an earlier judgment where costs orders had been made, which were subsequently set aside on appeal to the High Court. The core of the present appeal involved determining the status of a certificate of costs assessor and whether a new order for costs could be made.

The legal issues before the Court of Appeal included whether a certificate of costs assessor remained valid after the underlying costs order had been set aside pending the outcome of an appeal. Furthermore, the court was required to consider whether it possessed the power to make a new order as to the costs of the trial, particularly in light of the Uniform Civil Procedure Rules 2005 (NSW), r 36.17 (the slip rule), and whether such an order could be made if it was something that ought to have been made at the time of the original judgment. The court also had to determine if a certificate of assessment could form the basis of a new judgment for the same costs if a further order for their payment was made.

The Court of Appeal reasoned that once the original costs order was set aside, the certificate of costs assessor, which was predicated on that order, lost its efficacy. The court found that the slip rule was not applicable in this instance as it was not designed to correct errors or omissions of this nature, but rather to correct minor mistakes or oversights. Consequently, the court determined that it could make a fresh order regarding the costs of the trial. The court allowed the appeal, setting aside the previous orders and substituting them with new orders that specified Harbour Radio pay 50% of Mr Trad’s costs in the Common Law Division. Additionally, the court ordered that Mr Trad pay Harbour Radio’s costs of the trial on an ordinary basis up to 5 November 2007 and thereafter on an indemnity basis. Each party was ordered to bear its own costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

(1) The applicant be granted an extension of time up to 18 August 2015 within which to serve his application for leave to appeal.

(2) Grant leave to appeal and direct that within seven days the appellant file his draft notice of appeal dated 14 August 2014.

(3) Allow the appeal and set aside the orders made by Wilson J on 2 March 2015; in place thereof:

(a) set aside the judgment entered on 29 January 2015;

(b) order that Harbour Radio pay 50% of Mr Trad’s costs in the Common Law Division.

(4) On the motion filed by Harbour Radio, order that the plaintiff pay the defendant’s costs of the trial to be assessed on the ordinary basis up to 5 November 2007 and thereafter on an indemnity basis.

(5) Each party pay its own costs of the proceedings in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
Hearing dates:	11 April 2016
Decision date:	18 April 2016
Before:	McColl JA at [1]; Basten JA at [2]; Ward JA at [53]
Decision:	(1) The applicant be granted an extension of time up to 18 August 2015 within which to serve his application for leave to appeal. (2) Grant leave to appeal and direct that within seven days the appellant file his draft notice of appeal dated 14 August 2014. (3) Allow the appeal and set aside the orders made by Wilson J on 2 March 2015; in place thereof: (a) set aside the judgment entered on 29 January 2015; (b) order that Harbour Radio pay 50% of Mr Trad’s costs in the Common Law Division. (4) On the motion filed by Harbour Radio, order that the plaintiff pay the defendant’s costs of the trial to be assessed on the ordinary basis up to 5 November 2007 and thereafter on an indemnity basis. (5) Each party pay its own costs of the proceedings in this Court.
Catchwords:	COSTS – appeal – civil – interpretation of orders as to costs – validity of certificate of costs assessor – status of certificate where enforcement of costs order stayed pending outcome of appeal PRACTICE AND PROCEDURE – judgments – orders for costs of trial set aside on appeal – remitter from High Court – no subsequent order made – whether new order can be made as to costs of trial under slip rule, Uniform Civil Procedure Rules 2005 (NSW), r 36.17 – whether court can make further order which should have been made when judgment delivered JUDGMENTS AND ORDERS – judgment based on certificate of costs assessor – order for costs set aside – whether certificate of assessment invalid – whether certificate can form basis of new judgment if further order made for payment of same costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 133 Legal Profession Act 2004 (NSW), ss 368, 373, 384 Uniform Civil Procedure Rules 2005 (NSW); rr 36.10, 36.17; Pt 36, Div 4
Cases Cited:	Commonwealth of Australia v McCormack (1984) 155 CLR 273; [1984] HCA 57 Doyle v Hall Chadwick [2007] NSWCA 159 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] (1983) 151 CLR 590; [1982] HCA 59 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 2] (1988) 62 ALJR 151; [1988] HCA 2 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 Trad v Harbour Radio Pty Ltd [2013] NSWCA 477 Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227
Texts Cited:	Current Topics: ‘Deemed’ – an Overworked Drafting Expression?” (1977) 51 ALJ 229 (JG…