Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) - [2008] NSWCA 29

New South Wales

Court of Appeal

CITATION: Dalma Formwork (Australia) Pty Ltd & Anor v Maricic (No 3) [2008] NSWCA 29
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 March 2008

JUDGMENT DATE:
12 March 2008

JUDGMENT OF: Giles JA at 1; Basten JA at 32; McClellan CJ at CL at 43

DECISION: (1) Grant leave to appeal and direct that the notice of appeal be filed within seven days; (2) Appeal allowed; (3) Set aside the substantive order made on 23 March 2007, and in lieu thereof order that the second and third defendants pay the plaintiff's costs up to 28 August 2004 and that the plaintiff pay the second and third defendants' costs thereafter, in both cases assessed on a party and party basis; (4) Opponent pay the applicants' costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors Fund Act.

CATCHWORDS: Costs - defendant's offer of compromise - made under Pt 19A District Court Rules - at the time, consequences of plaintiff's failure to accept offer and then not bettering it under Pt 39A District Court Rules - prior to finalisation of proceedings Uniform Civil Procedure Rules came into force - different consequences under Pt 42 r 5 - costs would substantially eat up damages - whether a relevant consideration - discretion miscarried - whether order dispensing with UCP rule - or order otherwise under UCP rule - order made as if under District Court Rules.

CATEGORY: Principal judgment

CASES CITED: Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404;
Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49;
Hillier v Sheather (1995) 36 NSWLR 414;
Houalchanthara v Bednarszyk (CA, 14 October 1996, unreported);
House v The King (1936) 55 CLR 499.

PARTIES: Dalma Formwork (Australia) Pty Ltd - First Applicant/First Appellant
Bovis Lend Lease Pty Ltd - Second Applicant/Second Appellant
Zoran Maricic - Respondent

FILE NUMBER(S): CA 40217/07

COUNSEL: S R Donaldson SC & J P Braham - Applicants/Appellants
C T Barry QC & G Walsh - Respondent

SOLICITORS: Curwood and Partners - First Applicant/First Appellant
Yeldham Price O'Brien Lusk - Second Applicant/Second Appellant
CMC Lawyers - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 13478/01

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 23 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Marcicic v Dee Why Enterprises Pty Ltd (t/as Dalma the Formwork Specialists), Garling, DCJ, 23 March 2007, unreported

CA 40217/07
Dc 13478/01

GILES JA
BASTEN JA
McCLELLAN CJ at CL
Wednesday 12 March 2008

DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR v MARICIC (No 3)

Judgment

1 GILES JA: The respondent was injured when working on a construction site at Pyrmont in Sydney. In proceedings in the District Court he recovered damages from the first applicant, the formwork contractor to which the respondent’s labour was hired by his employer,…

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

Case: [2008] NSWCA 29
Decision Date: 12 March 2008

CaseChat Overview and Summary

The appeal in *Dalma Formwork (Australia) Pty Ltd v Maricic (No 3)* concerned the appropriate costs order following a District Court proceeding. The dispute arose from an offer of compromise made by the defendants under the then-applicable District Court Rules. However, during the course of the proceedings, the Uniform Civil Procedure Rules (UCPR) came into force, introducing different consequences for a plaintiff who failed to accept an offer of compromise and did not achieve a better outcome at trial. The primary issue was how these rule changes affected the costs order.

The court was required to determine whether the District Court judge had erred in exercising their discretion regarding costs. Specifically, the court had to consider whether the judge correctly applied the UCPR, or if they had made an order as if the old District Court Rules still applied. A key consideration was whether the fact that the costs awarded to the defendants would substantially eat up the damages awarded to the plaintiff was a relevant factor in the exercise of discretion under the UCPR, and whether the judge had the power to dispense with the application of the UCPR or make an alternative order.

The Court of Appeal found that the judge had miscarried in their discretion by failing to properly apply the UCPR. The court reasoned that the UCPR, having come into force, governed the costs consequences. The judge's decision to proceed as if the old rules applied was an error. The court allowed the appeal, setting aside the original costs order.

The substantive order was varied to reflect that the second and third defendants were to pay the plaintiff's costs up to 28 August 2004, and the plaintiff was to pay the second and third defendants' costs thereafter. These costs were to be assessed on a party and party basis. The applicants were also awarded their costs of the application for leave to appeal and the appeal itself, with a certificate granted under the Suitors Fund Act.

Orders

Orders of the court

(1) Grant leave to appeal and direct that the notice of appeal be filed within seven days; (2) Appeal allowed; (3) Set aside the substantive order made on 23 March 2007, and in lieu thereof order that the second and third defendants pay the plaintiff's costs up to 28 August 2004 and that the plaintiff pay the second and third defendants' costs thereafter, in both cases assessed on a party and party basis; (4) Opponent pay the applicants' costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors Fund Act.

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.

CITATION:	Dalma Formwork (Australia) Pty Ltd & Anor v Maricic (No 3) [2008] NSWCA 29 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 March 2008
JUDGMENT DATE:	12 March 2008
JUDGMENT OF:	Giles JA at 1; Basten JA at 32; McClellan CJ at CL at 43
DECISION:	(1) Grant leave to appeal and direct that the notice of appeal be filed within seven days; (2) Appeal allowed; (3) Set aside the substantive order made on 23 March 2007, and in lieu thereof order that the second and third defendants pay the plaintiff's costs up to 28 August 2004 and that the plaintiff pay the second and third defendants' costs thereafter, in both cases assessed on a party and party basis; (4) Opponent pay the applicants' costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors Fund Act.
CATCHWORDS:	Costs - defendant's offer of compromise - made under Pt 19A District Court Rules - at the time, consequences of plaintiff's failure to accept offer and then not bettering it under Pt 39A District Court Rules - prior to finalisation of proceedings Uniform Civil Procedure Rules came into force - different consequences under Pt 42 r 5 - costs would substantially eat up damages - whether a relevant consideration - discretion miscarried - whether order dispensing with UCP rule - or order otherwise under UCP rule - order made as if under District Court Rules.
CATEGORY:	Principal judgment
CASES CITED:	Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404; Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49; Hillier v Sheather (1995) 36 NSWLR 414; Houalchanthara v Bednarszyk (CA, 14 October 1996, unreported); House v The King (1936) 55 CLR 499.
PARTIES:	Dalma Formwork (Australia) Pty Ltd - First Applicant/First Appellant Bovis Lend Lease Pty Ltd - Second Applicant/Second Appellant Zoran Maricic - Respondent
FILE NUMBER(S):	CA 40217/07
COUNSEL:	S R Donaldson SC & J P Braham - Applicants/Appellants C T Barry QC & G Walsh - Respondent
SOLICITORS:	Curwood and Partners - First Applicant/First Appellant Yeldham Price O'Brien Lusk - Second Applicant/Second Appellant CMC Lawyers - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13478/01
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	23 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Marcicic v Dee Why Enterprises Pty Ltd (t/as Dalma the Formwork Specialists), Garling, DCJ, 23 March 2007, unreported