Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388

Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388

The Court of Appeal, exercising its powers on rehearing, has jurisdiction to alter first instance costs orders, including substituting per-defendant costs orders where appropriate. Restitution is to be made of monies paid under judgments set aside, with interest calculated according to the usual pre-judgment interest rate. Orders are to be made to give effect to the consequences of the appeal and to ensure costs are borne in a manner fairly reflecting the parties' respective success.

Parties
First Appellant/sixth Cross Respondent: David James Wardle; Second Appellant/ninth Cross Respondent: Gavin Winston Long; First Respondent/cross Appellant: Agricultural and Rural Finance Pty Ltd; Second Respondent/twelfth Cross Respondent: Oceania Agriculture Pty Ltd; First Appellant/first Cross Respondent: Peter Brakatselos; Second Appellant/second Cross Respondent: Geoffrey Nevell Fredericksen; Third Appellant/third Cross Respondent: Allan Patrick Holmes; Fourth Appellant/fourth Cross Respondent: Nicholas Charles Rowe; Fifth Appellant/fifth Cross Respondent: Maria Francesca Russo; Sixth Appellant/seventh Cross Respondent: Jennifer Dianne Wallace; Seventh Appellant/eighth Cross Respondent: Franco Giannuzzi; Tenth Cross Respondent: Maria Michael; Eleventh Cross Respondent: Christina Spyrakis
Jurisdiction
Australia
Judgment Date
30 November 2012
Procedural Posture
Appeals and Cross Appeals (consequential Orders) / Post Judgment Orders Following Appeal Determination
Outcome
Consequential orders made: appeals and leave granted; costs orders below set aside and varied; restitution ordered; parties added as appellants nunc pro tunc; issue of costs of first trial remitted for further determination; certificate under Suitors Fund Act 1951 granted if qualified.
Legal Topics
Costs Orders, Jurisdiction, Restitution, Consequential Orders, Appellate Procedure
Civil Procedure Costs Costs Orders Jurisdiction Restitution Consequential Orders Appellate Procedure

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Parties

David James Wardle

First Appellant/sixth Cross Respondent

Gavin Winston Long

Second Appellant/ninth Cross Respondent

Agricultural and Rural Finance Pty Ltd

First Respondent/cross Appellant

Oceania Agriculture Pty Ltd

Second Respondent/twelfth Cross Respondent

Peter Brakatselos

First Appellant/first Cross Respondent

Geoffrey Nevell Fredericksen

Second Appellant/second Cross Respondent

Allan Patrick Holmes

Third Appellant/third Cross Respondent

Nicholas Charles Rowe

Fourth Appellant/fourth Cross Respondent

Maria Francesca Russo

Fifth Appellant/fifth Cross Respondent

Jennifer Dianne Wallace

Sixth Appellant/seventh Cross Respondent

Franco Giannuzzi

Seventh Appellant/eighth Cross Respondent

Maria Michael

Tenth Cross Respondent

Christina Spyrakis

Eleventh Cross Respondent

Procedural Posture

Appeals and Cross Appeals (consequential Orders) / Post Judgment Orders Following Appeal Determination

Legal Issues

  1. 1 Whether Court of Appeal has jurisdiction to make costs orders benefiting non-parties to the appeal
  2. 2 Appropriate apportionment of costs between defendants and between parties in light of appeal outcome
  3. 3 Entitlement to restitution for amounts paid under judgment later set aside

Ratio Decidendi

The Court of Appeal, exercising its powers on rehearing, has jurisdiction to alter first instance costs orders, including substituting per-defendant costs orders where appropriate. Restitution is to be made of monies paid under judgments set aside, with interest calculated according to the usual pre-judgment interest rate. Orders are to be made to give effect to the consequences of the appeal and to ensure costs are borne in a manner fairly reflecting the parties' respective success.

Court Disposition

Consequential orders made: appeals and leave granted; costs orders below set aside and varied; restitution ordered; parties added as appellants nunc pro tunc; issue of costs of first trial remitted for further determination; certificate under Suitors Fund Act 1951 granted if qualified.

Orders

  • Grant leave to appeal to each of Mr Brakatselos, Mr Fredericksen, Mr Holmes, Mr Rowe, Ms Russo, Mrs Wallace and Mr Gianuzzi.
  • Order nunc pro tunc to add each as appellant as from 21 July 2011.