Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd (No 2) [2012] NSWCA 347

Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd (No 2) [2012] NSWCA 347

The Court was validly reconstituted, with Young AJA sitting in a different capacity, to determine the outstanding orders and costs. The alleged factual error in the principal judgment did not justify reopening because the variation in language was immaterial and the appellants had not established error. The respondent's supported calculations for recoverable legal costs and interest were accepted, the correction costs were limited to $9,910.50, and the proper judgment amount was $217,000. The respondent bettered the appellants' trial offer, so the District Court costs order was not disturbed. The appellants did not better their Calderbank offer on appeal, but they achieved substantial...

Jurisdiction
Australia
Judgment Date
26 October 2012
Procedural Posture
Appeal From District Court Judgments Concerning Damages and Costs / Determination of Final Orders and Costs on the Papers After Principal Judgment
Outcome
Appeal allowed in part; District Court damages judgment set aside and replaced with judgment for $217,000; appeal otherwise dismissed; respondent ordered to pay 50% of appellants' costs in the Court of Appeal; respondent granted a Suitors' Fund Act certificate if not disqualified.
Legal Topics
['costs of Appeal' 'costs of Trial' 'calderbank Offer' 'offer of Compromise' 'reconstitution of Court of Appeal' 'variation or Reopening of Judgment' 'assessment of Damages' 'interest']
['civil Procedure' 'costs' 'damages' 'courts and Judges'] ['costs of Appeal' 'costs of Trial' 'calderbank Offer' 'offer of Compromise' 'reconstitution of Court of Appeal' 'variation or Reopening of Judgment' 'assessment of Damages' 'interest']

Case Brief

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Procedural Posture

Appeal From District Court Judgments Concerning Damages and Costs / Determination of Final Orders and Costs on the Papers After Principal Judgment

Legal Issues

  1. 1 ['Whether the Court of Appeal could be reconstituted after Young JA retired, with Young AJA sitting in a different capacity, to determine outstanding issues on the papers.' 'Whether the principal judgment should be varied or reopened because of an alleged factual error concerning an offer to purchase the property.' 'What amount should be allowed for costs of correcting the survey.' 'What amount should be allowed for the costs of the first Supreme Court proceedings up to 28 February 2004 and interest on those costs.' "Whether the District Court costs order should be disturbed in light of the appellants' offer of compromise under r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW)." "Whether the appellants' Calderbank offer justified a special costs order on appeal, and what costs order should be made for the appeal."]

Ratio Decidendi

The Court was validly reconstituted, with Young AJA sitting in a different capacity, to determine the outstanding orders and costs. The alleged factual error in the principal judgment did not justify reopening because the variation in language was immaterial and the appellants had not established error. The respondent's supported calculations for recoverable legal costs and interest were accepted, the correction costs were limited to $9,910.50, and the proper judgment amount was $217,000. The respondent bettered the appellants' trial offer, so the District Court costs order was not disturbed. The appellants did not better their Calderbank offer on appeal, but they achieved substantial...

Court Disposition

Appeal allowed in part; District Court damages judgment set aside and replaced with judgment for $217,000; appeal otherwise dismissed; respondent ordered to pay 50% of appellants' costs in the Court of Appeal; respondent granted a Suitors' Fund Act certificate if not disqualified.

Orders

  • ['Allow the appeal in part and set aside order (2) made in the District Court on 13 December 2010 giving judgment for the plaintiff against each defendant in the sum of $474,360.89.' 'In place of the order set aside, give judgment for the plaintiff against each defendant in the sum of $217,000.' "Otherwise dismiss...