Almond Investors Limited v Kualitree Nursery Pty Limited & Anor

Judgment 1BATHURST CJ: On 27 July 2011, the Court made the following orders in these proceedings: 1 Appeal allowed. 2 In the event that the appellant and the respondents agree on the question of costs, direct that the appellant file short minutes of order to give effect to this judgment within 7 days of the date hereof. 3 In the event that the parties are unable to agree on the question of costs: (a) Order that the appellant file any submissions on this issue within 10 days of the date hereof; (b) Order that the respondents file any submissions in reply 7 days thereafter. 2The parties were unable to agree on the question of costs and submissions were filed pursuant to the Court's order. The appellant attached to its submission a spreadsheet setting out interest calculations pursuant to s 100 and s 101 of the Civil Procedure Act 2005 and draft orders. The respondents in their submission opposed the costs orders sought by the appellant but did not make any submissions in opposition to the other orders sought by it.

The Submissions 3The appellant's submissions on the question of costs may be summarised as follows: (a) The appellant's submissions on the question of construction which were made both in the Court below and in this Court were held to be correct. (b) The issues of renunciation and termination only arose if the construction contended for by the appellant was found to be correct. It occupied very little time in this Court. (c) Although the case was decided on a point different to that raised below, the respondents acknowledged that they suffered no particular prejudice by permitting the new point to be taken and no additional evidence could have been led had the point been taken before the primary judge. (d) The appellant should therefore have the costs of the trial and the appeal. (e) Having regard to the terms of a Calderbank letter dated 20 April 2011 which offered a settlement on the basis that the statement of claim, the cross-claim and the appeal be dismissed with no order as to costs, the appellant should have its costs of the appeal on an indemnity basis from 20 April 2011. It was submitted that by this time the respondents knew of the appellant's case in the appeal, it being set out in written submission in chief and in reply. 4The respondents submit that as the point on which the appellant succeeded was not taken in the Court below they should have the costs of the trial or there should be no order as to costs. They submit that had the point been taken it would have been included in their assessment of the case being put against them and would have "undoubtedly received careful consideration from the Trial Judge". 5So far as the appeal is concerned the respondents submit that the appellant's submissions on appeal did not focus on the 21 August 2007 email but on the totality of the respondents' conduct up to that time. It was contended that the submission on which the appellant was successful was first put during the hearing of the appeal. In those circumstances, the respondents submitted that it was not unreasonable for them to reject the Calderbank offer, and further, they should have either their costs of the appeal or there should be no order as to costs.