Cheng v Geussens (No 2)

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.