The appellants to pay the respondent's costs of the appeal on the ordinary basis up to 5 August 2011 and on an indemnity basis as and from 6 August 2011.
[Note: 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.]
Catchwords:
APPEAL - Grounds of appeal not available to be argued as were directly inconsistent with the concessions made at trial - Appeal dismissed
COSTS - Indemnity costs - Offer of compromise - Whether offer of compromise was genuine - Whether offer was "exclusive of costs" - Compliance with Uniform Civil Procedure Rules 2005
Tony BARAKAT, Russell Walter KEDDIE and Scott John ROULSTONE t/as KEDDIES LAWYERS (appellants) Snezana BAZDAROVA in her capacity as Executrix of the Estate of the late Stavre Bazdarov (respondent)
Representation:
Counsel: M L BRABAZON SC/ J M MORRIS (appellants) G M WATSON SC/ G J O'MAHONEY (respondent) Solicitors: Verekers Lawyers (appellant) Firths - The Compensation Lawyers (respondent)
File Number(s):
2011/240564
Decision under appeal
Date of Decision:
2011-06-24 00:00:00
Before:
Ashford DCJ
File Number(s):
2011/15729
Judgment
BATHURST CJ: I agree with Tobias AJA.
WHEALY JA: I agree with Tobias AJA.
TOBIAS AJA: On 27 March 2012 the Court dismissed an appeal by the appellants trading as Keddies Lawyers from a judgment of her Honour Judge Ashford of 24 June 2011 in favour of the late Stavre Bazdarov (the plaintiff). The respondent is the executrix of the plaintiff's estate, he having died on 11 July 2011. In circumstances to which I shall refer, upon the dismissal of the appeal an issue arose as to whether…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Barakat v Bazdarova [2012] NSWCA 140
Case
[2012] NSWCA 140
Decision Date
CaseChat Overview and Summary
In *Barakat v Bazdarova*, the appeal concerned a dispute between the parties, heard by Bathurst CJ, Whealy JA, and Tobias AJA. The appeal was brought by the appellants against the respondent.
The primary legal issues before the court were whether the grounds of appeal were available to the appellants given concessions made at trial, and whether the respondent was entitled to indemnity costs based on an offer of compromise that was allegedly genuine and "exclusive of costs" in compliance with the Uniform Civil Procedure Rules 2005.
The court found that the grounds of appeal were not available to the appellants as they were directly inconsistent with concessions previously made during the trial. Consequently, the appeal was dismissed. The court ordered that the appellants pay the respondent's costs of the appeal on the ordinary basis up to 5 August 2011, and on an indemnity basis from 6 August 2011, indicating that the offer of compromise was considered to be a genuine offer exclusive of costs.
Orders
Orders of the court
The appellants to pay the respondent's costs of the appeal on the ordinary basis up to 5 August 2011 and on an indemnity basis as and from 6 August 2011.
[Note: 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.]