Diamond v Simpson (No 2)

Case [2003] NSWCA 78
CITATION: Diamond v Simpson (No 2) [2003] NSWCA 78
HEARING DATE(S): 09/04/03 (on costs)
JUDGMENT DATE:
9 April 2003
JUDGMENT OF: Stein JA at 1; Ipp JA at 15; Young CJ in Eq at 19
DECISION: Costs order of lower court not disturbed. First respondent to pay 66% of the appellant's costs of the appeal.
CATCHWORDS: Costs of Appeal- Rejection of pre-trial offer of compromise- Does offer at trial continue to have cost consequences for an appeal- Supreme Court Rules Pt 52A r11- Discretion as to costs- Damages appeal- 16 heads- Appellant succeeds on half- Substantial reduction. (D)
LEGISLATION CITED: Supreme Court Rules Part 52A r11
CASES CITED: Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404
Fotheringham v Fotheringham (No 2) (1999) 46 NSWLR 194
Moore v Woodforth (No 2) [2003] NSWCA 46

PARTIES :

 Robert Diamond (Appellant)
Calandre Simpson by her Tutor William Charles Simpson (1st Respondent)
Trustees of the Sisters of St Joseph (2nd Respondent)
FILE NUMBER(S): CA 40962/01
COUNSEL: P L G Brereton SC (Appellant)
L A Levy SC and Ms J Lonergan (1st Respondent)
SOLICITORS: Blake Dawson Waldron (Appellant)
Turtons (1st Respondent)
LOWER COURTJURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): 12791/87
LOWER COURT
JUDICIAL OFFICER : 		Whealy J


                          CA 40962/01

                          STEIN JA
                          IPP JA
                          YOUNG CJ in EQ

                          Wednesday, 9 April 2003
Robert DIAMOND v Calandre SIMPSON (by Her Tutor William Charles SIMPSON & Anor) (No 2)

Judgment on Costs


1 STEIN JA: The Court is in a position to give judgment on the costs issue now. I will give the first reasons of the Court and my brothers will then give their reasons.

2 When judgment was published in this appeal on 7 April 2003 orders were made but the question of costs of the appeal was stood over for argument this morning. The Court has received brief written submissions and heard oral submissions.

3 One matter that I will deal immediately with is that the Court ordered that the judgment of Whealy J be set aside except as to costs. That was a reference to the costs order his Honour made on trial as between these parties.

4 On behalf of the appellant, Mr Brereton SC seeks to recall that order. As far as we know the orders have not been entered, so we have allowed argument to proceed on that basis. We have given consideration to the submissions of Mr Brereton and also Mr Levy SC on behalf of the first respondent, and have concluded that his Honour’s costs order in relation to the trial should not be disturbed. We are not persuaded, on balance, why this court should intervene.

5 Turning to the question of costs of the appeal, I will not repeat the arguments put by both sides, but they reduce themselves to these: the first respondent submits that the appellant should pay her costs of the appeal on an indemnity basis, and, as a fallback position, there should be an apportionment as to costs…

Continue reading Diamond v Simpson (No 2)

Sign in free to access the full text

Details
AGLC
Diamond v Simpson (No 2) [2003] NSWCA 78
Case
[2003] NSWCA 78
Decision Date

CaseChat Overview and Summary

Diamond (appellant) appealed against a decision of the Supreme Court of New South Wales concerning damages awarded in a previous proceeding. Simpson (first respondent) was the party against whom the appeal was brought. The appeal concerned a substantial reduction in the damages awarded to the appellant, who had succeeded on approximately half of the sixteen heads of damage claimed.

The primary legal issue before the Court of Appeal was whether an offer of compromise made by the appellant prior to the trial, which had been rejected by the respondent, continued to have cost consequences for the appeal. Specifically, the court considered the application of Supreme Court Rules Pt 52A r11 and the exercise of discretion regarding costs in light of the offer and the outcome of the appeal.

The court reasoned that the offer of compromise, made before the trial, was relevant to the costs of the appeal. Despite the appellant's success on only half of the heads of damage, the substantial reduction in the awarded damages meant that the appellant had achieved a better outcome than that offered. The court exercised its discretion under Pt 52A r11 to order that the first respondent pay a proportion of the appellant's costs of the appeal. The costs order of the lower court was not disturbed. The first respondent was ordered to pay 66% of the appellant's costs of the appeal.

Orders

Orders of the court

Costs order of lower court not disturbed. First respondent to pay 66% of the appellant's costs of the appeal.

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.