Air Link Pty Ltd v Paterson (No 2)

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New South Wales


Court of Appeal


CITATION: Air Link Pty Ltd v Paterson (No 2) [2009] NSWCA 342
HEARING DATE(S): On papers
 
JUDGMENT DATE: 

20 October 2009
JUDGMENT OF: Allsop P at 1; Ipp JA at 6; Sackville AJA at 7
DECISION: 1. Costs order made on 20 August 2009 be varied by ordering the appellant to pay the respondent's costs of the appeal proceedings up to (and including) 27 July 2009 on a party/party basis and therefter the appellant to pay the respondent's costs on an indemnity basis.
2. The appellant pay the respondent's costs of the motion.
LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY: Consequential orders
PARTIES: Air Link Pty Ltd
Malcolm Ian Paterson
FILE NUMBER(S): CA 40407/2008
SOLICITORS: Norton White Lawyers (Appellant)
M J Duffy & Son Solicitors (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 3938/2005
LOWER COURT JUDICIAL OFFICER: Elkaim SC DCJ
LOWER COURT DATE OF DECISION: 4 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION: Paterson v Air Link Pty Ltd [2008] NSWDC 241




                          40407/2008

                          ALLSOP P
                          IPP JA
                          SACKVILLE AJA

                          20 October 2009
AIRLINK PTY LTD v PATERSON (NO 2)
Costs Judgment

1 ALLSOP P: Judgment in this matter was delivered on 20 August 2009 ([2009] NSWCA 251). The respondent has applied by notice of motion for an order varying the costs order made on 20 August to provide for indemnity costs from 27 July 2009. The matter was heard on 4 August 2009.

2 The basis for the order sought is the service on 27 July 2009 of an offer of compromise under the Rules. The offer of compromise was to the effect that the respondent would accept a payment of $50,000 less than the judgment sum awarded ($389,500, instead of $439,500). The offer provided that the appellant would pay the respondent’s costs of the District Court proceedings in accordance with the previous orders made in the District Court and would pay the respondent’s costs of the proceedings in the Court of Appeal. Four days were given for acceptance, that is until 5 pm on 31 July 2009, which was a Friday; 27 July 2009 was a Monday; the appeal was heard on Tuesday 4 August.

3 The appellant resists the application principally on the basis that the hearing was one of public importance for the airline industry and the general public. It is true that the matter raised considerations of some importance for the industry. However these were not matters which concerned Mr Paterson. He had been injured and was entitled to a judgment. His interest was in the prompt and certain resolution of the case. He was prepared to make a not insignificant deduction for the safety of a settlement of a case which was otherwise well-founded.

4 It is true that much of the work had been done in the appeal by way of written submissions and other preparation. However, no doubt Mr Paterson was faced with the final costs of preparation and presentation…

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Details
Case
[2009] NSWCA 342
Decision Date

CaseChat Overview and Summary

The appeal in *Air Link Pty Ltd v Paterson (No 2)* concerned the appropriate basis for awarding costs following an appeal heard by Allsop P, Ipp JA, and Sackville AJA. The dispute revolved around the costs incurred in the appeal proceedings, specifically whether they should be awarded on a party/party or indemnity basis, and from what point in time.

The primary legal issue before the court was to determine the appropriate costs order to be made in relation to the appeal proceedings. This involved considering the conduct of the parties and the circumstances surrounding the litigation to ascertain whether a departure from the usual party/party costs order was warranted, and if so, on what basis and from which date.

The court varied the costs order previously made. It ordered that the appellant pay the respondent's costs of the appeal proceedings on a party/party basis up to and including 27 July 2009. Thereafter, the appellant was ordered to pay the respondent's costs on an indemnity basis. Additionally, the appellant was ordered to pay the respondent's costs of the motion.

Orders

Orders of the court

1. Costs order made on 20 August 2009 be varied by ordering the appellant to pay the respondent's costs of the appeal proceedings up to (and including) 27 July 2009 on a party/party basis and therefter the appellant to pay the respondent's costs on an indemnity basis.

2. The appellant pay the respondent's costs of the motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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