Hatziandoniou v Ruddy (No 2) - [2015] NSWCA 277

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277
Hearing dates: On the papers
Decision date: 14 September 2015
Before: Basten JA at [1]; Leeming JA at [12]; Simpson JA at [18]
Decision:
(1)  Set aside the order for costs made in the District Court on 20 June 2014.

(2)  The respondent is to pay the appellant’s costs of the appeal (assessed on the ordinary basis), excluding the costs of the application for special costs orders.

(3)  The costs of the first trial be in the discretion of the judge before whom the new trial is to be conducted.
(4) The respondent have a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the costs of the appeal.
Catchwords:
COSTS - claim for damages for personal injury - wrongful rejection of expert evidence tendered by plaintiff (appellant) - judgment for defendant - new trial ordered - appellant entitled to costs of appeal - appeal against assessment of damages - assessment upheld - proportion of appeal time taken on unsuccessful appeal ground miniscule - where offer of compromise made by appellant and not accepted, Uniform Civil Procedure Rules 2005 (NSW) 20.26 - appellant’s award of damages contingent on outcome of retrial - costs awarded on an ordinary basis - decision on indemnity costs to await outcome of retrial

COSTS - whether Court of Appeal should order costs of first trial - remit question of costs to second trial - erroneous rulings an ordinary hazard of litigation - costs of first trial to be at discretion of new trial judge
COSTS - application for special costs orders - both parties achieved partial success - no order as to costs
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 51.47, 51.48
Cases Cited: Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427
Coote v Kelly (No 2) [2013] NSWCA 457
Hatziandoniou v Ruddy [2015] NSWCA 234
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208
Category: Costs
Parties: George Hatziandoniou (Appellant)
Michael Ruddy (Respondent)
Representation:
Counsel:
M Williams SC/R O’Keefe (Appellant)
K P Rewell SC/J B Turnbull (Respondent)
Solicitors:
Shine Lawyers Pty Ltd (Appellant)
Moray and Agnew Lawyers (Respondent)

File Number(s): 2014/196799
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

20 June 2014

Before:

Delaney DCJ

File Number(s):

2013/12786

Judgment

BASTEN JA: On 14 August 2015 the Court delivered judgment on an appeal, setting aside the judgment below in favour of the respondent: Hatziandoniou v Ruddy [2015] NSWCA 234. The appellant was the plaintiff in District Court proceedings seeking damages against the respondent (the defendant in those proceedings) for injury suffered in a motor vehicle accident. At trial, the appellant failed on liability, but the trial judge made a notional assessment of damages. On the appeal, this Court held that the trial judge was in error in rejecting an opinion of an…

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.

Keep reading for free

Create a free CaseChat account to read Hatziandoniou v Ruddy (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWCA 277
Decision Date: 14 September 2015

CaseChat Overview and Summary

The appeal concerned costs orders made by the District Court following a personal injury claim. The appellant, Mr. Hatziandoniou, had appealed a judgment in favour of the respondent, Ms. Ruddy, after the District Court had rejected expert evidence tendered by the appellant. The Court of Appeal had previously ordered a new trial and found the appellant entitled to the costs of that appeal, but the assessment of those costs was subject to further determination. The appeal before the Court of Appeal in this instance concerned the assessment of costs, including the costs of the first trial and special costs orders.

The primary legal issues before the Court of Appeal were: (a) whether the appellant was entitled to indemnity costs of the appeal, or if costs should be assessed on an ordinary basis; (b) the appropriate disposition of the costs of the first trial; and (c) whether special costs orders should be made given the partial success of both parties. The court also considered the impact of an unaccepted offer of compromise made by the appellant under rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).

The Court of Appeal reasoned that the erroneous rejection of expert evidence by the District Court judge was an ordinary hazard of litigation, and therefore, the costs of the first trial should be left to the discretion of the judge presiding over the new trial. Regarding the costs of the appeal, the court noted that the appellant had achieved substantial success in overturning the initial judgment and securing a new trial. While the appellant's award of damages was contingent on the outcome of the retrial, the court determined that costs of the appeal should be assessed on an ordinary basis, not indemnity, as the appellant's success on one ground of appeal was significantly diminished by the limited success on other grounds, including an unsuccessful appeal against the assessment of damages. The court also declined to make special costs orders, finding that both parties had achieved partial success.

Consequently, the Court of Appeal set aside the District Court's costs order, ordered that the respondent pay the appellant's costs of the appeal on an ordinary basis (excluding costs of the special costs application), and directed that the costs of the first trial be at the discretion of the judge conducting the new trial. The respondent was also granted a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.

Orders

Orders of the court

(1) Set aside the order for costs made in the District Court on 20 June 2014.

(2) The respondent is to pay the appellant’s costs of the appeal (assessed on the ordinary basis), excluding the costs of the application for special costs orders.

(3) The costs of the first trial be in the discretion of the judge before whom the new trial is to be conducted.

(4) The respondent have a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the 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.

Medium Neutral Citation:	Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277
Hearing dates:	On the papers
Decision date:	14 September 2015
Before:	Basten JA at [1]; Leeming JA at [12]; Simpson JA at [18]
Decision:	(1) Set aside the order for costs made in the District Court on 20 June 2014. (2) The respondent is to pay the appellant’s costs of the appeal (assessed on the ordinary basis), excluding the costs of the application for special costs orders. (3) The costs of the first trial be in the discretion of the judge before whom the new trial is to be conducted. (4) The respondent have a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the costs of the appeal.
Catchwords:	COSTS - claim for damages for personal injury - wrongful rejection of expert evidence tendered by plaintiff (appellant) - judgment for defendant - new trial ordered - appellant entitled to costs of appeal - appeal against assessment of damages - assessment upheld - proportion of appeal time taken on unsuccessful appeal ground miniscule - where offer of compromise made by appellant and not accepted, Uniform Civil Procedure Rules 2005 (NSW) 20.26 - appellant’s award of damages contingent on outcome of retrial - costs awarded on an ordinary basis - decision on indemnity costs to await outcome of retrial COSTS - whether Court of Appeal should order costs of first trial - remit question of costs to second trial - erroneous rulings an ordinary hazard of litigation - costs of first trial to be at discretion of new trial judge COSTS - application for special costs orders - both parties achieved partial success - no order as to costs
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 51.47, 51.48
Cases Cited:	Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427 Coote v Kelly (No 2) [2013] NSWCA 457 Hatziandoniou v Ruddy [2015] NSWCA 234 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208
Category:	Costs
Parties:	George Hatziandoniou (Appellant) Michael Ruddy (Respondent)
Representation:	Counsel: M Williams SC/R O’Keefe (Appellant) K P Rewell SC/J B Turnbull (Respondent) Solicitors: Shine Lawyers Pty Ltd (Appellant) Moray and Agnew Lawyers (Respondent)
File Number(s):	2014/196799
Decision under appeal	Court or tribunal: District Court Date of Decision: 20 June 2014 Before: Delaney DCJ File Number(s): 2013/12786