Pucciarmati v Walker Nominees Pty Ltd [2002] NTSC 30

PARTIES:	PUCCIARMATI, Roberto

	v

	WALKER NOMINEES PTY LTD (In Liquidation) ACN 009 632 311

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	20 of 2002 (20001207)

DELIVERED:	15 May 2002

HEARING DATES:	

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

COSTS APPLICATION
Appellant’s application – argument that a successful appeal should lead to an award in costs – no order as to costs – had issue been raised before his Worship, likely error would not have been made – appellant’s lack of conduct in litigation.

REPRESENTATION:

Counsel:
	Appellant:	J Waters QC
	Respondent:	P Barr 

Solicitors:
	Appellant:	Noonans Lawyers
	Respondent:	Markus Spazzapan

Judgment category classification:	B
Judgment ID Number:	mar0215
Number of pages:	3

Mar0215

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Pucciarmati v Walker Nominees Pty Ltd [2002] NTSC 30
No. 20 of 2002 (20001207)

	BETWEEN:

	ROBERTO PUCCIARMATI
	Appellant

	AND:

	WALKER NOMINEES PTY LTD (In Liquidation) ACN 009 632 311
	Respondent

CORAM:	MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 15 May 2002)

[1]	These are rulings as to cost arising from the appeals in this matter.
[2]	Upon the hearing of the appeal against judgment, the appellant successfully raised an error of law which had not been raised in the proceedings giving rise to the appeal.  Indeed, the transcript of proceedings before the learned Magistrate records that he supported the course which his Worship foreshadowed following.  Furthermore, it was the appellant's failure to properly prepare for trial which brought about the situation confronting the respondent.  It was the appellant's conduct in the litigation, or should I say lack of it, which has led to a most unsatisfactory, not to say, wasteful, position.
[3]	Had the issue been raised before his Worship, it is likely, I think, that the error would not have been made.  It is not possible to speculate as to what his Worship would have done.  The appellant, nevertheless, says that having succeeded in the appeal against judgment he should have his costs.
[4]	For its part the respondent also acquiesced in the order made by his Worship, it enabled it to obtain judgment.  Its readiness to take advantage of the error contributed to it.
[5]	There will be no order as to costs upon the appeal against judgment.
[6]	Next, that part of the appeal to do with his Worship's refusal to make an order for security for costs against the respondent.  That appeal was dismissed.  Again, upon grounds not put in the court below.  Whatever complaints the appellant may have in suggesting that the respondent was not open and fair in relation to its financial position, the fact remains that there was no issue between the parties apart from the defence and counterclaim.  It is highly unlikely that an order for security for costs would have been made against the respondent in those circumstances.  
[7]	Although the application for security for costs was for an interlocutory order, I consider the circumstances justify an order that the appellant pay the respondent's costs of and incidental to that matter.
[8]	The parties have also made submissions regarding costs in the Local Court attending upon the adjournment applications.  If those matters are properly the subject of appeal (the files are not presently available to me) then in all the circumstances there is no reason why the appellant should not be ordered to pay the respondent's costs of those applications and costs thrown away.  Order accordingly. 
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