Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd (No 2)

THE COURT: The Court delivered judgment in this appeal on 5 February 2015: Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 (Principal Judgment). This judgment needs to be read with the Principal Judgment. The same abbreviations are used.

The Court allowed Composters’ appeal in part. The Court set aside Order 3 made by McDougall J on 12 May 2014, which directed entry of judgment, pursuant to the Civil Procedure Act 2005 (NSW), s 90(2)(a), for Robertson against Composters in the sum of $1,556,206.

The parties were directed to bring in agreed short minutes of order. In the absence of agreement, the parties were directed to file and serve their own proposed short minutes of order, together with brief written submissions.

Each party duly filed short minutes of order and written submissions. As there seemed to be significant differences in calculations between the submissions and lack of clarity as to whether the sum of $400,000 held by the Principal Registrar by way of bank guarantee had been paid out to Robertson, the parties were asked to clarify their respective positions.

As the result of that request, the parties provided a joint note, as follows:

The Principal Judgment recorded (at [90]) the preliminary view of the Court that, subject to written submissions, no order should be made as to the costs of the appeal.

Composters submits that Robertson should pay 50 per cent of Composters’ costs of the appeal because:

Robertson’s submissions point out that Composters abandoned five of its 11 grounds of appeal at the outset of the hearing. The abandoned grounds involved challenges to more than half of the damages awarded to Robertson. As Robertson also pointed out, a number of other issues addressed in Composters’ written submissions were not pursued at the hearing.

In substance, Composters’ argument on the appeal relied on a single ground, namely the absence of a final and concluded agreement between the parties as to price. By refining the issues in this way, Composters’ senior counsel reduced the time required for the hearing. Refinement of the issues by concentrating only on the really significant matters is something to be encouraged.

The difficulty for Composters, so far as its claim for costs is concerned, is that the refinement took place at a very late stage in the proceedings. A good deal of work undertaken by Robertson’s legal representatives would not have been necessary had the refinement taken place in a timely fashion. Moreover, Composters did not merely abandon a number of arguments. It conceded that the bulk of the damages award made by the primary Judge in Robertson’s favour should stand. That concession was only made at or perhaps very shortly before the hearing of the appeal.

For these reasons, it is appropriate that no order should be made as to the costs of the appeal, with the intent that each party bears its own costs.

The following orders should be made: