[2021] NSWCA 77
Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre (No 2)
The following orders are to be entered forthwith: (1) The first and second respondents are to pay the appellant’s costs of the proceedings in this Court and the Court below. (2) No order as to the costs as between the appellant and the third respondent in this Court or the Court below. (3) No order as to the costs of the cross-claims in the Court below.
Catchwords
PRACTICE AND PROCEDURE – appeal – final orders – orders by consent – orders in default of agreement
Judgment
- [1]
THE COURT: On 22 December 2020 the Court delivered its principal judgment in this matter. Orders were made allowing the appeal and setting aside orders 1-4 made in the Common Law Division. The Court also declared that the first, second and third respondents were liable in damages to the appellant. The parties were directed to confer to determine the extent to which agreement could be reached as to the quantum of damages, the apportionment of liability and final orders.
- [2]
On 12 February 2021 consent orders were made providing for judgment for the appellant against each of the three respondents in fixed sums. The orders noted that the third respondent had satisfied its judgment and, for reasons which are obscure, the appellant directed the first respondent to pay an amount approximately double the judgment against the third respondent to the third respondent. No agreement was then reached with respect to costs, which were referred to in the following terms:
- [3]
On 19 February 2021 the appellant emailed the Registrar in the following terms:
- [4]
That request was granted but, despite several extensions, produced no result. On 31 March 2021 a directions hearing was convened which resulted in the following orders:
- [5]
On 13 April 2021 the Registrar advised the parties in the following terms:
- [6]
On 19 April 2021 the first respondent advised the Registrar that it consented to proposed orders 1-3. As at 4 May 2021 no other party had responded.
- [7]
The failure of the appellant and third respondent to comply with directions of the Court is troubling. Each party had been legally represented throughout the proceedings. Each party attended, remotely, the directions hearing held on 31 March 2021. In the circumstances, the proper course is to bring the proceedings to finality by directing the entry of the proposed orders set out in the Registrar’s email to the parties of 13 April 2021. The Court so orders.