New South Wales
Court of Appeal
CITATION: Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan & Ors) [2009] NSWCA 161
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 2 April 2009
JUDGMENT DATE:
3 July 2009JUDGMENT OF: Giles JA at 1; McColl JA at 123; Basten JA at 124 DECISION: In each of proceedings 40518/07, 40519/07 and 40116/09: (1) Appeal allowed in part. (2) Set aside the orders made on 26 October 2007 that the third defendant pay the plaintiff’s costs on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the costs incurred by the plaintiff by reason of the matters identified in [17] of the reasons published on that day. (3) Set aside the orders made on 26 October 2007 that the third defendant pay the first and second defendants’ costs of the trial on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the first and second defendants’ costs of the trial incurred from 6 to 20 March 2006 inclusive by reason of the matters identified in [17] of the reasons published on that day and their costs of the trial incurred from 20 March 2006. (4) Set aside the orders made on 26 October 2007 that the costs of the first and second defendants payable by the third defendant include any costs payable by the first and second defendants to the plaintiffs. (5) Set aside the orders made on 26 October 2007 that the Council pay the costs of each other party to the costs applications and in lieu thereof order – (a) as between the third defendant and the plaintiff the third defendant pay 75 per cent of the costs of the costs application; and (b) as between the third defendant and the first and second defendants that the third defendant pay 70 per cent of the costs of the costs application. (6) Appeals otherwise dismissed. In each of proceedings 40115/09 and 40117/09 - (7) Appeal dismissed. In all the appellate proceedings - (8) Appellant pay the costs of the first respondent. (9) Appellant pay 75 per cent of the costs of the second to sixth respondents. (10) Appellant pay 75 per cent of the costs of the seventh and eighth respondents. CATCHWORDS: TORTS - negligence - motor vehicle accident at intersection - modified T intersection - V1 had right of way turning right from leg of T over V2 passing along top of T - V2 did not see modified T interesection sign - drove straight ahead - V2 negligent - council did not install the appropriate warning signs and line markings - council negligent - whether V1 also negligent because did not slow down or stop despite having right of way - having right of way was part of circumstances in assessing reasonableness of V1's…
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- Case
- [2009] NSWCA 161
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the council was negligent in its signage and markings at the intersection, whether V1 was contributorily negligent by not slowing down or stopping despite having the right of way, and whether the trial judge's apportionment of liability between V2 and the council was erroneous. Additionally, the court considered whether the trial judge's costs orders, which directed the council to pay the plaintiffs' costs on an indemnity basis, were appropriate and whether they went beyond compensatory orders.
By majority, the Court of Appeal held that V1 was not negligent, finding that having the right of way was a relevant circumstance in assessing the reasonableness of V1's conduct, and on the facts, V1's actions were reasonable. The majority also found that the trial judge's apportionment of liability between V2 and the council was open to him. However, the court found that the trial judge had miscarried his discretion regarding the costs orders. The indemnity costs orders were considered to be in the nature of Bullock or Sanderson orders, and there was no proper basis for such orders, with the court determining that the council's delinquency only justified an award to the extent that costs were increased.
Consequently, the appeals were allowed in part. The indemnity costs orders made by the trial judge were set aside and replaced with orders that the council pay specific portions of the plaintiffs' and other defendants' costs on an indemnity basis, reflecting the extent to which those costs were increased by the council's conduct. The remaining appeals were dismissed, and specific orders were made regarding the payment of costs of the appellate proceedings.
Orders
Orders of the court
In each of proceedings 40518/07, 40519/07 and 40116/09: (1) Appeal allowed in part. (2) Set aside the orders made on 26 October 2007 that the third defendant pay the plaintiff's costs on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the costs incurred by the plaintiff by reason of the matters identified in [17] of the reasons published on that day. (3) Set aside the orders made on 26 October 2007 that the third defendant pay the first and second defendants' costs of the trial on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the first and second defendants' costs of the trial incurred from 6 to 20 March 2006 inclusive by reason of the matters identified in [17] of the reasons published on that day and their costs of the trial incurred from 20 March 2006. (4) Set aside the orders made on 26 October 2007 that the costs of the first and second defendants payable by the third defendant include any costs payable by the first and second defendants to the plaintiffs. (5) Set aside the orders made on 26 October 2007 that the Council pay the costs of each other party to the costs applications and in lieu thereof order - (a) as between the third defendant and the plaintiff the third defendant pay 75 per cent of the costs of the costs application; and (b) as between the third defendant and the first and second defendants that the third defendant pay 70 per cent of the costs of the costs application. (6) Appeals otherwise dismissed. In each of proceedings 40115/09 and 40117/09 - (7) Appeal dismissed. In all the appellate proceedings - (8) Appellant pay the costs of the first respondent. (9) Appellant pay 75 per cent of the costs of the second to sixth respondents. (10) Appellant pay 75 per cent of the costs of the seventh and eighth respondents.
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17/08/2009 - typo - Paragraph(s) 3
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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