Agripower Barraba Pty Ltd v Blomfield (No 2)

[2015] NSWCA 49

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Agripower Barraba Pty Ltd v Blomfield (No 2) [2015] NSWCA 49
Hearing dates:	On the papers
Decision date:	16 March 2015
Before:	Bathurst CJ; Beazley P; Sackville AJA
Decision:	The Court confirms that: 1 Agripower’s motion to adduce further evidence is dismissed. 2 Agripower pay the respondents’ costs of Agripower’s motion to adduce further evidence. 3 Otherwise there be no order as to the costs of the appeal.
Cases Cited:	Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30
Category:	Costs
Parties:	Agripower Barraba Pty Ltd (Appellant) Dean Blomfield (First Respondent) Penelope Blomfield (Second Respondent)
Representation:	Counsel: GK Burton SC / JC Conde (Appellant) TGR Parker SC / M Castle (Respondents) Solicitors: Neill Scott Lawyers (Appellant) Lyons Barnett Kennedy (Respondents)
File Number(s):	2013/342847
Decision under appeal	Court or tribunal: Supreme Court Citation: [2013] NSWSC 1598 Date of Decision: 5 November 2013 Before: Black J File Number(s): 2012/320018

Judgment

1. THE COURT: The Court delivered judgment in this appeal on 27 February 2015: Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30 (Principal Judgment). This judgment uses the same abbreviations as the Principal Judgment.

2. The Principal Judgment records (at [65]) that in the course of argument on the appeal the Court dismissed Agripower’s motion to adduce further evidence, with costs.

3. The orders made by the Court in the Principal Judgment include the following:

5    Subject to Order 6, there be no order as to the costs of the appeal.

6    A party wishing to apply for a different order as to the costs of the appeal have liberty to file written submissions within seven days, the opposing party having a further seven days to respond in writing.

7    The parties have liberty to file agreed short minutes of order within fourteen days if they are able to reach agreement on outstanding issues.

4. The respondents have filed brief written submissions. They request that the orders made at the hearing “be reflected in the Court’s final orders”, together with a notation for the benefit of the Costs Assessor indicating that the motion took up approximately half of the hearing. Alternatively, the respondents seek an order that Agripower pay 50 per cent of their costs of appeal in lieu of the costs order made at the hearing.

5. Agripower submits that Order 5 is the appropriate order as to the costs of the appeal: that is, there be no order as to costs. Alternatively, if the Court is minded to distinguish between the costs of the motion to adduce further evidence and the costs of the appeal, they say that Agripower should receive a proportion of its costs of the appeal.

6. There is no occasion to vary the orders made at the hearing in relation to the motion to adduce further evidence. For the avoidance of doubt they are recorded in this judgment.

7. The Principal Judgment states (at [110]) a preliminary view that there should be no order for the costs of the appeal as each party had enjoyed some success. That view was expressed having regard to the costs order made at the hearing in relation to Agripower’s motion to adduce further evidence. The parties’ written submissions provide no basis for departing from the view expressed in the Principal Judgment that there should be no order as to the costs of the appeal.

8. The assessment of costs to be attributed to Agripower’s motion will be a matter for a Costs Assessor.

9. We confirm the following orders:

1   Agripower’s motion to adduce further evidence is dismissed.

2   Agripower pay the respondents’ costs of Agripower’s motion to adduce further evidence.

3   Otherwise there be no order as to the costs of the appeal.

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