New South Wales
Court of Appeal
CITATION: Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): On the papers
JUDGMENT DATE:
3 April 2006JUDGMENT OF: Giles JA; Ipp JA; Tobias JA DECISION: Application for order refused CATCHWORDS: PROCEDURE – costs – application for indemnity costs of trial – Calderbank offer – principles LEGISLATION CITED: District Court Rules Part 39 Rule 1B CASES CITED: Calderbank v Calderbank [1975] 1 All ER 333
Leichhardt Municipal Council v Green [2004] NSWCA 341
Oshlack v Richmond River Council (1998) 193 CLR 72
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323PARTIES: Evans Shire Council
Norman Boyd RichardsonFILE NUMBER(S): CA 40445/05 COUNSEL: A: J E Marshall SC / J Thornton
R: H N Kelly SC / T McKenzieSOLICITORS: A: Phillips Fox, Sydney
R: King Cain Solicitors, BathurstLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 21/02 LOWER COURT JUDICIAL OFFICER: Murray A-DCJ
CA 40445/05
3 April 2006GILES JA
IPP JA
TOBIAS JA
1 THE COURT: The judgment of the Court in this matter on the substantive issues argued on the appeal was delivered on 30 November 2005 when the Court granted the claimant leave to appeal, allowed the appeal, set aside the verdict and judgment of the primary judge in favour of the opponent, and in lieu thereof ordered that there be a verdict and judgment for the claimant.
2 As well as ordering the opponent to pay the claimant’s costs of the appeal, it ordered the opponent to pay the costs of the proceedings at trial. On the application of the claimant’s solicitor, at the time these orders were made, the claimant was granted leave to file submissions in support of an application for indemnity costs of the trial. The Court therefore directed that the claimant file those submissions on or before 6 December 2005, that the opponent’s submissions in reply be filed by 9 December 2005 and that the Court would then determine the issue of indemnity costs on the papers.
3 The claimant’s submissions were duly filed on 6 December 2005 but no submissions in reply were filed on behalf of the opponent. The Court was later informed that the opponent did not wish to file any such submissions.
4 The opponent was successful before the primary judge who found that he was entitled to damages in the sum of $10,100 for injuries sustained on Anzac Day 1999 when he tripped over a mound which, as his Honour held, the claimant had failed to remove in breach of its duty of care when exercising de facto control over the area where the mound was located.
5 The opponent instituted proceedings in the District Court by Ordinary Statement of Claim filed on 24 April 2002 in…
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- Case
- [2006] NSWCA 61
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the respondent, Richardson, should be awarded indemnity costs of the trial, notwithstanding that the appellant, Evans Shire Council, had made a *Calderbank* offer. The Court was required to consider the principles governing the award of indemnity costs in circumstances where a *Calderbank* offer has been made and rejected.
The Court of Appeal refused the application for indemnity costs. The reasoning applied by the Court centred on the established principles for awarding indemnity costs. These principles require a party seeking such costs to demonstrate that the other party's conduct was unreasonable or vexatious, or that there were other exceptional circumstances justifying the departure from the usual order for costs. In this instance, the Court found that the conduct of Evans Shire Council did not meet the threshold for an award of indemnity costs, even in light of the *Calderbank* offer.
Orders
Orders of the court
Application for order refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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