BOSTIK AUSTRALIA PTY LTD v LIDDIARD

CITATION: BOSTIK AUSTRALIA PTY LTD v LIDDIARD (NO 2) [2009] NSWCA 304

JUDGMENT OF: Beazley JA at 1; Ipp JA at 1; Basten JA at 1

(1) Vary order (3) made on 26 June 2009 so that it provides:

(3) Order the first respondent (Mr Liddiard) to pay 40% of the appellant's costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.

(2) Otherwise dismiss the notice of motion of the first respondent (Mr Liddiard) filed on 9 July 2009.

(3) Order the appellant (Bostik Australia Pty Ltd) to pay 50% of the first respondent's costs of his motion.

DECISION: (4) Vary the orders made on 26 June 2009 by adding to order (2) a new paragraph (c) and making consequential amendments to paragraphs (a) and (b), so that order (2) now reads:

(2) In lieu thereof: (a) enter judgment for the second defendant against the plaintiff; (b) order the plaintiff to pay the second defendant's costs of the proceedings other than those attributable to the cross-claims, and (c) dismiss the cross-claims of the first and second defendants, with no order as to costs of the cross-claims.

(5) Otherwise dismiss the notice of motion filed by the appellant on 10 July 2009.

(6) Order that the appellant pay the costs of the second respondent (Brolton) of the appellant's motion.

CATCHWORDS: COSTS - costs of appeal - Sanderson Order - two respondents to appeal - both respondents necessarily joined - whether any basis upon which unsuccessful respondent could be found responsible for the joinder of other respondent - COSTS - costs of trial - Sanderson Order - plaintiff alerted to possibility of proceedings against successful defendant through conduct of unsuccessful defendant - enquiry made as to whether plaintiff contemplating proceedings against successful defendant - denial of liability - provision of information to plaintiff - whether conduct constituted sufficient inducement or was otherwise unreasonable - COSTS - two issues on appeal - issues severable - respondent successful on one issue - respondent ordered to pay appellant's costs of appeal - whether order for costs should reflect respondent's partial success

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17 Workers Compensation Act 1987 (NSW), s 151Z, Pt 5, Div 3

Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70 Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 CASES CITED: Gould v Vaggelas [1985] HCA 85; (1985) 157 CLR 215 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 State of New South Wales v Stanley [2007] NSWCA 330 Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 Turkmani v Visvalingham (No 2) [2009] NSWCA 279 Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported)

Bostik Australia Pty Ltd - Appellant PARTIES: Warren Edward Liddiard - First Respondent Brolton Industries Pty Ltd - Second Respondent

J Sexton SC - Appellant COUNSEL: S Campbell SC/P Menary - First Respondent A Katzmann SC/D Hooke - Second Respondent

Lee & Lyons - Appellant SOLICITORS: W G McNally Jones Staff - First Respondent Edwards Michael Lawyers - Second Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40173/08

BEAZLEY JA IPP JA BASTEN JA

24 September 2009 BOSTIK AUSTRALIA PTY LIMITED v WARREN LIDDIARD & ANOR (NO 2) Judgment 1 THE COURT: The Court delivered its reasons for judgment in this matter on 26 June 2009: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167. The effect of the Court's judgment was that judgment was to be entered for the appellant, Bostik Australia Pty Ltd (Bostik), against the first respondent, Mr Liddiard. 2 In relation to costs, the Court ordered that Mr Liddiard pay Bostik's costs of trial other than those attributable to the cross-claims and pay Bostik's costs of the appeal other than costs attributable to the question of apportionment as between Bostik and the second respondent, Brolton Industries Pty Ltd (Brolton). The Court granted Mr Liddiard a certificate under the Suitors' Fund Act 1951. The Court otherwise made no order as to the costs of Bostik and Brolton in respect of the appeal. 3 Subsequent to judgment being delivered, Mr Liddiard and Bostik have filed notices of motion seeking to vary the costs orders made by the Court. Background 4 Mr Liddiard was injured on 30 January 2003, when he lifted a rubbish bin on premises owned and occupied by Bostik. Bostik was in the packaging business and conducted its business in a factory on the site. Mr Liddiard's employer, Brolton, was in the engineering business and operated out of a part of that factory. Mr Liddiard considered Mr Lynch, the principal of Brolton, to be "his boss". Brolton supplied labour to Bostik and used Bostik's equipment, as and when it needed. The agreement between Bostik and Brolton in respect of these arrangements was not in written form and Mr Liddiard had no knowledge of such arrangements. At the time of his injury, Mr Liddiard's services were being provided to Bostik by Brolton. 5 Employees of both Bostik and Brolton spent meal and other work breaks in a small open shed on the site. There were a number of drums in the shed, each with a capacity of 44 gallons (200 litres), which were used as rubbish bins. It was one of these bins that Mr Liddiard was lifting when he was injured. Mr Liddiard had never been instructed as to how to empty the bins or perform any associated or allied task. 6 Mr Liddiard brought proceedings against Brolton and Bostik. Brolton and Bostik brought cross-claims against each other. The trial judge, Hungerford ADCJ, found Brolton and Bostik liable in negligence and apportioned liability for Mr Liddiard's injury as to 40 per cent to Brolton and 60 per cent to Bostik. 7 Bostik appealed to this Court. It argued that Mr Liddiard's claim was statute barred, that his Honour had erred in admitting certain evidence and that his Honour had erred in finding that it owed a duty of care to Mr Liddiard. It submitted that if it did owe such a duty, the trial judge had erred in his finding it had breached that duty and in his apportionment of liability as between itself and Brolton. 8 Beazley JA (Ipp and Basten JJA agreeing) found that Mr Liddiard's claim was not statute barred (see [22]-[56]) and that his Honour had erred in admitting some, but not most, of the evidence Bostik identified as incorrectly admitted (see [57]-[74]). 9 Basten JA (Ipp JA agreeing; Beazley JA dissenting) found that neither the legal arrangement nor the practical circumstances in which Mr Liddiard worked imposed a duty upon Bostik to take steps to ensure a safe system of work for Mr Liddiard (see [149]). Basten JA (Ipp JA agreeing; Beazley JA dissenting) concluded that even assuming that such a duty existed, there was no basis for concluding that Bostik breached that duty in the absence of findings by the trial judge as to the specific cause of the injury, the requirements of a safe system of work and whether such a system would have ameliorated the risk of injury (see [150]-[158]). Mr Liddiard's notice of motion 10 In his notice of motion, Mr Liddiard seeks the following orders pursuant to the Uniform Civil Procedure Rules 2005 (the UCPR), r 36.16: (a) An order that Brolton pay Bostik's costs of the proceedings, other than those attributable to the cross claims; (b) An order that Brolton pay Bostik's costs of the appeal, other than those attributable to the question of apportionment as between Bostik and Brolton; and (c) Further, or alternatively, an order that Mr Liddiard pay one-half of Bostik's costs of the appeal, other than those attributable to the question of apportionment as between Bostik and Brolton. 11 Mr Liddiard submitted that the Court should make a Sanderson order that Brolton pay Bostik's costs of the trial and of the appeal other than the costs attributable to the cross-claims at trial and the questions of apportionment on the appeal. (Bostik, in its notice of motion, also sought such orders.) In support of the making of such orders, Mr Liddiard relied upon the following passage in Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 at [15] in which the Court said: "In determining whether it is fair to make such an order, two matters are usually considered to be relevant. First, it must have been reasonable for the plaintiff to have brought the proceedings against the successful defendant: see Gould v Vaggelas [1985] HCA 85; (1985) 157 CLR 215 per Gibbs CJ (at 230); Wilson J (Murphy J agreeing) (at 247); Brennan J (at 260); Lackersteen v Jones (No 2) (1988) 93 FLR 442 (at 449); Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; (2000) NSWCCR 417 (at [128]) per Mason P (Stein and Heydon JJA agreeing). Secondly, there must be some conduct on the part of the unsuccessful defendant which would make it fair to impose liability on it for the costs of the successful defendant: Gould v Vaggelas (at 230; 247 and 260)." 12 Gould v Vaggelas, to which this Court referred in the above passage, involved a Bullock order. The same principles apply to the making of a Sanderson order, the only difference between the two being whether the unsuccessful defendant is ordered to pay the costs directly to the successful defendant: a Sanderson order; or whether the unsuccessful defendant is required to pay to the plaintiff the costs the plaintiff is ordered to pay to the successful defendant: see generally the discussion in Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70 per Beazley JA (Ipp JA agreeing). 13 In Gould v Vaggelas Gibbs CJ said, at 229-230: "… the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock Order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution.

The ground on which a Bullock Order may be made is … that the costs which the plaintiff has been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed 'are ordered to be paid by the unsuccessful defendant, on the ground that … those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant.' In Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 572-573 Williams J stated the principle in a similar way and Starke and Dixon JJ, in giving their reasons for making a Bullock order, both relied on the circumstance that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant at 559-560, 566. In my respectful opinion the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGRA 94 at 100; 21 ACTA 23 at 30-31 when he said that: 'There is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant.'" 14 Wilson J stated, at 247, that such an order may be made:

"… where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant." 15 His Honour considered that there was no error in the trial judge's exercise of discretion, for the reasons he gave. Murphy J agreed with Wilson J on the making of the Bullock order. 16 Brennan J stated, at 260: "… Although the making of a Bullock order is in the discretion of a trial judge, the mere joinder of two causes of action against separate defendants in the one action is insufficient to support the making of an order against an unsuccessful defendant when the other defendant is exonerated. A judicial discretion can be exercised to make a Bullock order against an unsuccessful defendant in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiffs' claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought (cf. Johnsons Tyne Foundry Pty Ltd v Maffra Corporation . In the present case the respondents, by denying inducement and placing reliance upon the independent advice tendered to Mrs Gould by Mr Ingles, showed that it was reasonable and proper to join the claim in negligence against the accountants with the claim in deceit against the respondents. The Bullock order ought not to have been disturbed." 17 The judgments in Gould v Vaggelas reveal that it may be sufficient for a party, by its pleadings, to engage in conduct which attracts the exercise of the discretion. However, in Gould v Vaggelas, it was not only the vendor's denial of the purchasers' claim which rendered it vulnerable to a Bullock order against it, but its allegation of reliance directed at one of the accountants. It is reasonable to conjecture that had the vendor only denied the purchasers' claim, a Bullock order would not have been made. It was the additional factor of the vendor directing blame towards one of the accountants which was the factor that tipped the balance. This is apparent, in particular, from the passage in the judgment of Gibbs CJ, set out above. (a) Costs of trial: Sanderson order 18 Mr Liddiard submitted that it was apparent from the "strong dissent" of Beazley JA, in which her Honour found that Bostik owed Mr Liddiard a duty of care that was akin to the duty owed to an employee and that Bostik had breached this duty, that it was reasonable for him to bring proceedings against Bostik. For present purposes, it is sufficient to proceed on the basis that it was reasonable for Mr Liddiard to bring proceedings against Bostik. The focus of the inquiry then becomes whether there was conduct on the part of Brolton which would make it fair to impose liability on it for the costs of Bostik. Mr Liddiard referred to Giles J (as his Honour then was) in Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 where his Honour said (at 55,605-55,606) that the second matter necessary to found a Sanderson order: "… more widely has been found in the unsuccessful defendant telling the plaintiff in one way or another that it should look to the successful defendant for its remedy." 19 Mr Liddiard submitted that Brolton's denial of liability in its pleadings, together with its enquiry to Mr Liddiard's solicitors on 31 October 2006, and its provision to Mr Liddiard's solicitors of material identifying Bostik's role in the workplace was conduct which made it fair to impose on Brolton the liability for Bostik's costs. 20 In the letter of 31 October 2006, Brolton inquired of Mr Liddiard's solicitors whether Mr Liddiard had commenced or was contemplating common law proceedings against Bostik in relation to the injury sustained on 30 January 2003. Included with the letter was a statement by Mr Lynch, Bostik's site manager. Beazley JA, at [33]-[37] (Ipp and Basten JJA agreeing), found that that prior to the receipt of Mr Lynch's statement, Mr Liddiard did not know of the relationship between Bostik and Brolton. Her Honour also concluded, at [49], that the first occasion on which Mr Lynch's statement came to the attention of Mr Liddiard's solicitor was on 3 November 2006, when Mr Liddiard's solicitor received the 31 October 2006 letter from Brolton's solicitors. 21 In an affidavit sworn on 8 July 2009, Mr Liddiard's solicitor said he first became aware of the possible involvement of Bostik when he read Mr Lynch's statement. Prior to that, he had not given any consideration to commencing proceedings against Bostik. He said that had he not received that statement, as well as an insurer's investigation report and copy of the statement of Mr Pearce (Bostik's site manager), which Brolton's solicitors provided to him in February 2007, he would "not have given any consideration to advising [Mr Liddiard] to sue [Bostik]". 22 Mr Liddiard had commenced proceedings against Brolton for lump sum compensation under the Workers Compensation Act 1987. On 21 December 2006, Mr Liddiard and Brolton settled those proceedings on terms that Mr Liddiard had sustained an impairment in excess of the work injury damages threshold. On the same day, Mr Liddiard's solicitors wrote to Bostik's solicitors, putting Bostik on notice that he intended to commence common law proceedings against Bostik in respect of his work injury. 23 Brolton contended that there was nothing in its conduct which would warrant the making of a Sanderson order. It maintained that it made the inquiry in the letter dated 31 October 2006 in the context of its recovery rights under the Workers Compensation Act 1987, s 151Z(1)(d), as to which it would have to make a decision if Mr Liddiard was not going to commence proceedings of his own against Bostik. As Mr Liddiard did not seek to dispute the explanation, it should be accepted. 24 Brolton also argued that Mr Liddiard stood to gain substantially from a successful action against Bostik, which was why Mr Liddiard's solicitor had advised him to bring proceedings against Bostik. The gains were said to derive from the different measure of damages under the Civil Liability Act 2002 relating to the assessment of damages against Bostik and the provisions of the Workers Compensation Act, Pt 5, Div 3 relating to the assessment of damages against Brolton. Brolton maintained that Mr Liddiard made his own decision, for his own reasons, to commence proceedings against Bostik in the first place. 25 Brolton further relied upon the fact that, although it had conceded at trial that it owed a non delegable duty of care to Mr Liddiard to provide a safe system of work, it had not acted unreasonably in leaving the question of breach of duty in issue. In this regard, it referred to the judgment at [157], where Basten JA (Ipp JA agreeing) said: "Without a finding as to why the bin was so much heavier than usual on the occasion of the injury, it is not possible to say that the system of work was unsafe." 26 This submission has no direct relevance. The discussion at [157] in the principal judgment was concerned with a possible breach of duty on the part of Bostik, not Brolton, and in circumstances where Bostik had been found to owe no duty to Mr Liddiard. 27 Brolton finally submitted that there was no warrant for varying the Court's orders as to costs, because the orders were made after the Court had considered the manner in which the parties had conducted the litigation (see [160] per Basten JA (Ipp JA agreeing)). 28 Bostik supported Mr Liddiard's application for a Sanderson order both at trial and on appeal, other than the costs attributable to the cross claims. Brolton, however, pointed out that Bostik had not identified a basis for its support. Brolton also contended that Bostik lacked sufficient interest to have standing to seek such an order. It maintained that whilst the situation may be said to be different where an unsuccessful plaintiff is indigent, or there is otherwise difficulty in recovering costs from the party ordered to pay, this was not such a case. 29 The requirement that a party's conduct is relevant to determining whether a Sanderson order should be made is not a requirement that the party engage in misconduct. Rather, it is whether, given its conduct, it is fair to impose such an order on it. If the only conduct in which Brolton engaged was the inquiry made in its letter of 31 October, there would be no question that that conduct was insufficient to make the Sanderson order sought by Mr Liddiard. Nor would the bringing of a cross-claim of itself necessarily be sufficient. The question in this case then is whether the voluntary provision of the statements of Mr Lynch, Mr Pearce and the investigator's report to Mr Liddiard's solicitors, together with the inquiry in the letter and the bringing of the cross-claim, was such that it is fair that Brolton be made subject to a Sanderson order. In this regard, it should be observed that the statement of Mr Pearce and the investigation report were given to Mr Liddiard's solicitors with Brolton's pre-filing defence. 30 Mr Liddiard has not made out a case for a Sanderson order. Although it was in Brolton's interest to have Bostik joined in the proceedings, so as to bear a proportionate share of any liability, and whilst it provided Mr Liddiard with such information that it had in its possession in respect of Bostik's role, that is not sufficient to require it to bear the costs of Mr Liddiard's claim against Bostik. The enquiry in the letter and the provision of information in respect of Bostik's role is not an inducement of a kind which was sufficient in this case to warrant making a Sanderson order. There was nothing in Brolton's conduct such as was the case in Gould v Vaggelas which made its conduct unreasonable. No Sanderson order should be made in relation to the costs of the trial. (b) Costs of the appeal: Sanderson order 31 In relation to the costs of the appeal, both Mr Liddiard and Bostik sought a Sanderson order requiring that Brolton pay Bostik's costs of the appeal. 32 The basis of this application had to be different from that in relation to the costs of the trial, where Mr Liddiard was the moving party. In this case Bostik was the appropriate moving party for such an order, being the appellant which joined both respondents. However, given the judgment below which was subject to challenge, it was necessary to join both Mr Liddiard and Brolton to the appeal. 33 Mr Liddiard resisted Bostik's appeal, no doubt because his judgment against Bostik was some 30% in excess of that against Brolton. In any event, each respondent had an interest in defending the judgment below and resisting the appeal. There was no comprehensible basis upon which Brolton could be found responsible for the joinder of Mr Liddiard. 34 The application for a Sanderson order in respect of the costs of the appeal was misconceived and must be refused. (c) Variation of Mr Liddiard's responsibility for costs of appeal 35 Mr Liddiard sought alternatively that he should only be held liable for 50 per cent of Bostik's costs. The basis of this submission was that two matters were essentially argued on appeal. The first was the limitation argument and the second was the argument relating to the alleged duty of care owed by Bostik to Mr Liddiard and the breach of that duty. Mr Liddiard submitted that the first matter concerned an important matter of principle and that significant attention was given to this issue both in written and oral argument. 36 Mr Liddiard argued, therefore, that whilst he was unsuccessful on the issue of the existence of and breach of a duty of care, it would be inconsistent to order him to pay Bostik's costs in relation to the limitation issue, given that he won that issue. A 50/50 apportionment of the costs of the appeal was said to be an equitable way of resolving the inconsistency of making Mr Liddiard pay all of Bostik's costs on the appeal (excluding the costs attributable to the question of apportionment as between Bostik and Brolton), given his success on the limitation issue. 37 This submission was supported by Brolton. It contended that the limitation defence was an issue that only Bostik's public liability insurer had an interest in. Bostik submitted that the usual practice of the Court is that costs follow the result of the appeal and that the Court does not usually apportion costs on an issue by issue basis. 38 The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows: o Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). o In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal. o If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27]. o Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed). o A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]. o Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.

These principles were applied in City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 at [22] and most recently in Turkmani v Visvalingham (No 2) [2009] NSWCA 279. 39 In this case, the issue on which Mr Liddiard was successful was the limitation issue. The consideration of that issue involved considerable time both in written and oral argument. It was a severable issue and Mr Liddiard should not be required to pay Bostik's costs relating to the time spent in dealing with it. Accordingly, the costs order on the appeal should be that the Mr Liddiard pay 40 per cent of Bostik's costs of the appeal (excluding the costs attributable to the question of apportionment as between Bostik and Brolton). Bostik's notice of motion 40 On 10 July 2009, being the 14th day after the delivery of the principal judgment by this Court, Bostik filed a notice of motion seeking four orders. One was a Sanderson order in favour of Mr Liddiard in relation to the costs of the trial. At best that order was otiose and must in any event be refused in circumstances where Mr Liddiard's claim for such an order has been refused. 41 The second order sought was for a Sanderson order in relation to the costs of the appeal. As already noted, that claim was without foundation and must be rejected. 42 The third order was a claim that both its cross-claim and that of Brolton should have been dismissed, in lieu of the orders of apportionment made on the cross-claims by the trial judge. Brolton did not ultimately resist such orders and they should be made, their omission from the orders made in the principal judgment being an oversight. (It will be necessary to say something further about Brolton's primary response in respect of Bostik's notice of motion.) 43 Brolton submitted that as both cross-claims had failed, it and Bostik should pay their own costs of their respective cross-claims. Brolton also argued that Bostik had not sought such relief in its notice of appeal, nor made any reference to such a claim in its written or oral submissions on the appeal. Brolton pointed out that the substantive outcome of the appeal was as Bostik had sought in its notice of appeal, so that this question must have been in the contemplation of Bostik at least at the time of the hearing of the appeal. The effect of this submission was that the application now made is an afterthought and should not be entertained by the Court. Brolton otherwise relied upon the same arguments it advanced in relation to Mr Liddiard's notice of motion to oppose Bostik's notice of motion. 44 There is merit in the claim that Bostik's motion is an afterthought. The orders sought in the notice of appeal did not adequately deal with the proper disposal of the matter, should the grounds of appeal be upheld. Order (4) simply stated "Costs". Bostik's original written submissions made no reference to dismissal of the cross-claims nor as to any order for costs in the event that it obtained the judgment it sought on Mr Liddiard's statement of claim. 45 Bostik sought a fourth order that Brolton pay its costs of the cross-claims. Bostik appears to have assumed that this Court overlooked the question of the costs of the cross-claims, despite the fact that orders (2)(b) and (3) expressly referred to them and excluded them. 46 The trial judge had ordered that each party bear its own costs of the cross-claims, in circumstances where there had been a finding that Bostik and Brolton were both liable to Mr Liddiard. The Court on the appeal has determined that Bostik was not liable. As is common when defendants cross-claim against each other, the factual issues which are relevant to the cross-claims are substantially worked out in the course of the plaintiff's case. The same applies on an appeal. The issues are, in the main, worked out in the argument on the appeal. The outcome of any cross-claim is usually dependent on the result of the appeal. If a defendant succeeds on liability on the appeal, any cross-claim against it falls away. In this case, both cross-claims fell away. In the circumstances, Bostik and Brolton should bear their own costs of their respective cross claims. 47 It remains to say something about the manner in which the parties sought to address Bostik's notice of motion. First, Bostik erroneously sought orders under an inappropriate rule. Brolton took the point that reliance upon the wrong rule, together with a lack of power to extend time in which to file a notice of motion seeking to vary orders under the relevant rule, being UCPR, r 36.16, precluded reliance upon the correct rule. In fact, Brolton's submission was also, at least in part, incorrect. It was not in dispute that the failure to deal with the cross-claim was "an accidental slip or omission". Such an error may be corrected at any time, with or without application from a party: r 36.17. That rule may not have been available in relation to the issue of costs of the cross-claims if the omission was that of Bostik rather than the Court, but that is not a matter which needs to be addressed. The fact that the parties have no doubt incurred expense and this Court has been put to trouble due to the failure of counsel to identify accurately the rules under which matters were to be considered, together with a resultant arid procedural argument, is to be deplored. Costs of motions 48 Mr Liddiard sought three orders and obtained one. The variation to order (3), made on 26 June 2009, should be effected but the notice of motion otherwise dismissed with no order as to its costs in respect of Brolton. 49 In relation to Mr Liddiard's motion, Bostik supported the unsuccessful claims for Sanderson orders. In respect of the reduction Mr Liddiard sought in relation to the costs payable by Bostik, he has been successful and Bostik unsuccessful. Bostik should therefore pay 50% of Mr Liddiard's costs of his motion. 50 Bostik sought four orders. It has obtained an order that the cross-claims, including its own cross-claim, be dismissed. In its submissions, it noted that such an order was claimed "for completeness" and was "not a matter which is necessary or which, of itself, would justify this application". Nor was the appropriateness of that order disputed. That order should be made, but Bostik's notice of motion should otherwise be dismissed. It should pay Brolton's costs of the motion. Conclusions 51 The Court makes the following orders:

(1) Vary order (3) made on 26 June 2009 so that it provides: (3) Order the first respondent (Mr Liddiard) to pay 40% of the appellant's costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.

(2) Otherwise dismiss the notice of motion of the first respondent (Mr Liddiard) filed on 9 July 2009.

(3) Order the appellant (Bostik Australia Pty Ltd) to pay 50% of the first respondent's costs of his motion.

(4) Vary the orders made on 26 June 2009 by adding to order (2) a new paragraph (c) and making consequential amendments to paragraphs (a) and (b), so that order (2) now reads: (2) In lieu thereof: (a) enter judgment for the second defendant against the plaintiff; (b) order the plaintiff to pay the second defendant's costs of the proceedings other than those attributable to the cross-claims, and (c) dismiss the cross-claims of the first and second defendants, with no order as to costs of the cross-claims.

(5) Otherwise dismiss the notice of motion filed by the appellant on 10 July 2009.

(6) Order that the appellant pay the costs of the second respondent (Brolton) of the appellant's motion. **********

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