Arnott v Choy (No 2)

[2010] NSWCA 336

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Arnott v Choy (No 2) [2010] NSWCA 336

FILE NUMBER(S):
2009/298214

HEARING DATE(S):
On the papers

JUDGMENT DATE:
7 December 2010

PARTIES:
Demetrious Arnott - Appellant
Henry Choy - Respondent

JUDGMENT OF:
McColl JA Basten JA    

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 07/1647

LOWER COURT JUDICIAL OFFICER:
Levy SC SCJ

LOWER COURT DATE OF DECISION:
4 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[2009] NSWDC 17

COUNSEL:
PJ Deakin QC with J Turnbull - Appellant
CS Leahy SC - Respondent

SOLICITORS:
Holman Webb Lawyers - Appellant
Ron Kramer Associates - Respondent

CATCHWORDS:
PROCEDURE - costs - whether Calderbank letter may be relied upon in proceedings under the Motor Accidents Compensation Act 1999 (NSW)

LEGISLATION CITED:
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY:
Consequential orders

CASES CITED:
Arnott v Choy [2010] NSWCA 259
Calderbank v Calderbank [1976] Fam 93
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

TEXTS CITED:

DECISION:
1. The respondent shall pay the appellant’s costs of the appeal, including the costs of this application, to be assessed up to and including 2 July 2009 on the ordinary basis and thereafter on an indemnity basis. 2.           Each party shall pay his own costs of the cross-appeal. 3. The respondent shall have a certificate under the Suitor’s Fund Act 1951 (NSW).
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298214

McColl JA
Basten JA

Tuesday 7 December 2010

Arnott v Choy (No 2)

1. THE COURT: The respondent brought proceedings in the District Court of New South Wales for an assessment of damages for personal injuries suffered in a motor vehicle accident.  He obtained a judgment below in the amount of $2,154,131.60.  That award was reduced to $1,134,464 on appeal: Arnott v Choy [2010] NSWCA 259. The parties were given an opportunity to make submissions as to the appropriate orders as to the costs of the appeal and of a cross-appeal brought by the respondent.

2. The appellant, relying on an offer of compromise, sought an order that the respondent pay his costs of the appeal, to be assessed on the ordinary basis up to 2 July 2009 and on an indemnity basis thereafter.  The respondent sought an order that each party bear his own costs of the appeal.  There was agreement that each should bear his own costs of the cross-appeal.

3. On 1 June 2009, some three days short of three months after judgment in the Court below, the appellant served an offer of compromise, expressed to be made…