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[2015] NSWCA 49

Agripower Barraba Pty Ltd v Blomfield (No 2)

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

Judgment

  1. [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. [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. [3]

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

  4. [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. [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. [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. [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. [8]

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

  9. [9]

    We confirm the following orders:

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.