Cheng v Geussens (No 2) - [2014] NSWCA 254

Court of Appeal

New South Wales

Case Title: Cheng v Geussens (No 2)

Medium Neutral Citation: [2014] NSWCA 254

Hearing Date(s): On the papers

Decision Date: 04 August 2014

Before: Basten JA at [1]; Barrett JA at [2]; Ward JA at [3]

Decision:
1. Set aside order 4 made on 8 April 2014 and in place thereof order that the applicant/appellant pay the costs of the respondent in this Court assessed on the ordinary basis.
2.No order as to the costs of the respondent's notice of motion filed 22 April 2014.

[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: PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where appellant successful in reducing assessment of his contributory negligence - where respondent made offer of compromise prior to District Court proceedings that was not accepted and judgment on appeal no more favourable to the appellant than the offer - where appeal was limited to question of liability and damages not yet determined by the District Court - whether appellant should pay respondent's costs of the appeal and/or District Court proceedings on an indemnity basis from the day following the day of making of the offer of compromise

Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson (No 2) [2012] NSWCA 420
Cheng v Geussens [2014] NSWCA 113
Daly v Thiering [2013] HCA 45; (2013) 88 ALJR 67
Encyclopaedia Britannica Australia Ltd v Campbell (No 2) [2009] NSWCA 335
Grace v Thomas Street CafÃ© Pty Ltd (No 2) [2008] NSWCA 72
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
The Uniting Church v Takacs (No 2) [2008] NSWCA 172

Category: Costs

Parties: Yingen Cheng by his tutor Gendi Qian (Applicant)
Joachim Geussens (Respondent)

Representation

- Counsel: Counsel:
P Segal (Applicant)
J B Turnbull (Respondent)

- Solicitors: Solicitors:
McInnes Wilson (Respondent)

File Number(s): 2013/62444

Decision Under Appeal

- Before: Elkaim DCJ

- Date of Decision: 06 February 2014

- Court File Number(s): 2011/411308

Publication Restriction: Nil

JUDGMENT

BASTEN JA: I agree with Ward JA.
BARRETT JA: I also agree with Ward JA.
WARD JA: On 8 April 2014, this Court granted the applicant, Yingen Cheng, leave to appeal from a decision in the District Court as to the liability of the respondent, Joachim Geussens, for injury suffered by Mr Cheng when Mr Geussens' car collided with Mr Cheng as he was crossing an intersection in Coogee ([2014] NSWCA 113).
The District Court…

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.

Continue reading Cheng v Geussens (No 2)

Details

AGLC: Cheng v Geussens (No 2) [2014] NSWCA 254
Case: [2014] NSWCA 254
Decision Date: 04 August 2014

CaseChat Overview and Summary

In *Cheng v Geussens (No 2)*, the appellant, Cheng, sought to appeal an order concerning costs. The dispute arose from an earlier District Court proceeding where the appellant had been found contributorily negligent. The appeal to the Court of Appeal was limited to the question of liability and damages, which had not yet been determined by the District Court. The respondent, Geussens, had made an offer of compromise prior to the District Court proceedings, which was not accepted. The judgment on appeal was not more favourable to the appellant than this offer.

The central legal issue before the Court of Appeal was whether the appellant should be ordered to pay the respondent's costs of the appeal and/or the District Court proceedings on an indemnity basis from the day following the making of the offer of compromise. This question required the court to consider the circumstances under which it would depart from the general rule regarding the assessment of costs and order costs on an indemnity basis, particularly in light of the appellant's success in reducing the assessment of his contributory negligence.

The Court of Appeal reasoned that while the appellant had achieved some success in reducing his contributory negligence, this did not outweigh the fact that the judgment on appeal was no more favourable to him than the respondent's earlier offer of compromise. The court noted that the appeal was limited in scope and that the primary determination of liability and damages was still pending in the District Court. Applying the principles governing offers of compromise and the discretion to award indemnity costs, the court concluded that the general rule should apply to the costs of the appeal.

Consequently, the Court of Appeal ordered that the appellant pay the costs of the respondent in the Court of Appeal, assessed on the ordinary basis, setting aside a previous order to the contrary. There were no orders made as to the costs of the respondent's notice of motion filed on 22 April 2014.

Orders

Orders of the court

1. Set aside order 4 made on 8 April 2014 and in place thereof order that the applicant/appellant pay the costs of the respondent in this Court assessed on the ordinary basis.

2.No order as to the costs of the respondent's notice of motion filed 22 April 2014.

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Cheng v Geussens (No 2)
Medium Neutral Citation:	[2014] NSWCA 254
Hearing Date(s):	On the papers
Decision Date:	04 August 2014
Before:	Basten JA at [1]; Barrett JA at [2]; Ward JA at [3]
Decision:	1. Set aside order 4 made on 8 April 2014 and in place thereof order that the applicant/appellant pay the costs of the respondent in this Court assessed on the ordinary basis. 2.No order as to the costs of the respondent's notice of motion filed 22 April 2014. [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:	PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where appellant successful in reducing assessment of his contributory negligence - where respondent made offer of compromise prior to District Court proceedings that was not accepted and judgment on appeal no more favourable to the appellant than the offer - where appeal was limited to question of liability and damages not yet determined by the District Court - whether appellant should pay respondent's costs of the appeal and/or District Court proceedings on an indemnity basis from the day following the day of making of the offer of compromise
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson (No 2) [2012] NSWCA 420 Cheng v Geussens [2014] NSWCA 113 Daly v Thiering [2013] HCA 45; (2013) 88 ALJR 67 Encyclopaedia Britannica Australia Ltd v Campbell (No 2) [2009] NSWCA 335 Grace v Thomas Street CafÃ© Pty Ltd (No 2) [2008] NSWCA 72 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 The Uniting Church v Takacs (No 2) [2008] NSWCA 172
Category:	Costs
Parties:	Yingen Cheng by his tutor Gendi Qian (Applicant) Joachim Geussens (Respondent)
Representation
- Counsel:	Counsel: P Segal (Applicant) J B Turnbull (Respondent)
- Solicitors:	Solicitors: McInnes Wilson (Respondent)
File Number(s):	2013/62444
Decision Under Appeal
- Before:	Elkaim DCJ
- Date of Decision:	06 February 2014
- Court File Number(s):	2011/411308
Publication Restriction:	Nil