Jaycar Pty Limited v Lombardo [2011] NSWCA 284

Jaycar Pty Limited v Lombardo [2011] NSWCA 284

Leave to appeal was refused to Jaycar Pty Ltd and Electus Distribution Pty Ltd as the case involved no question of principle or public importance, and there was no clear injustice. Leave to appeal as to costs was granted to Ross Lombardo, as the judge's order departing from the rule that costs follow the event due to a judicial error was incorrect in principle; costs should have been awarded to the successful party in the application to vary the judgment.

Jurisdiction
Australia
Judgment Date
14 September 2011
Procedural Posture
Appeal / Applications for Leave to Appeal And, If Granted, Hearing of the Appeal
Outcome
Leave to appeal refused for Jaycar Pty Ltd and Electus Distribution Pty Ltd; leave to appeal granted for Ross Lombardo as to costs; costs orders varied in favour of Ross Lombardo.
Legal Topics
['appeals in Civil Claims' 'costs Orders' 'merchantable Quality' 'implied Terms' 'judicial Error' 'statutory Liability for Defective Goods' 'practice and Procedure' 'leave to Appeal Under Supreme Court Act']
['civil Procedure' 'product Liability' 'contracts' 'costs'] ['appeals in Civil Claims' 'costs Orders' 'merchantable Quality' 'implied Terms' 'judicial Error' 'statutory Liability for Defective Goods' 'practice and Procedure' 'leave to Appeal Under Supreme Court Act']

Case Brief

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Procedural Posture

Appeal / Applications for Leave to Appeal And, If Granted, Hearing of the Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted to Jaycar Pty Ltd and Electus Distribution Pty Ltd regarding liability findings.' 'Whether leave to appeal should be granted to Ross Lombardo regarding the costs order for the Notice of Motion to vary judgment.' 'Whether the judge erred in failing to determine all pleaded causes of action and in costs orders.' 'Whether a party should receive costs where an application was made due to judicial error not caused by either party.']

Ratio Decidendi

Leave to appeal was refused to Jaycar Pty Ltd and Electus Distribution Pty Ltd as the case involved no question of principle or public importance, and there was no clear injustice. Leave to appeal as to costs was granted to Ross Lombardo, as the judge's order departing from the rule that costs follow the event due to a judicial error was incorrect in principle; costs should have been awarded to the successful party in the application to vary the judgment.

Court Disposition

Leave to appeal refused for Jaycar Pty Ltd and Electus Distribution Pty Ltd; leave to appeal granted for Ross Lombardo as to costs; costs orders varied in favour of Ross Lombardo.

Orders

  • ['Dismiss the summons seeking leave to appeal filed by Jaycar Pty Limited and Electus Distribution Pty Limited dated 4 March 2011, with costs.' 'Grant leave to appeal to Ross Lombardo concerning the judgment delivered in the court below on 24 June 2011.' 'Deem the draft Notice of Appeal contained in the White Book...