Reported Decision: 67 NSWLR 712
Court of Appeal
CITATION: MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR (NO. 2) [2006] NSWCA 237 HEARING DATE(S): 16 June 2006
JUDGMENT DATE:
28 August 2006JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Basten JA at 7 DECISION: Amend the orders made by this Court on 30 June 2006 by adding the following order:; (5A) Order the Appellant to pay to the Respondents the cross-respondent’s costs of the cross-appeal from 14 May 2006. CATCHWORDS: COSTS – offers of compromise – appeal successful – issue of damages remitted to District Court – offers of compromise made during trial and appeal – whether Uniform Civil Procedure Rules 2005, r 20.26 applied – whether there should be a costs order for the appeal prior to the assessment of damages where offers have been made - COSTS – Bullock Order – Workers Compensation Act 1987, s 151H - appellant did not proceed against employer – concession that appellant could not establish the minimum 15% permanent impairment only forthcoming on appeal – whether reasonable for respondent to pursue cross-claim against employer in the absence of such concession – whether successful appellant should pay costs incurred by unsuccessful respondents in unsuccessfully joining the employer LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005, r 20.26, r 42.15, Part 51, r2, r3
Workers Compensation Act 1987 (NSW), ss 151C, 151D, 151H, 151Z
Workers Compensation Legislation Further Amendment Act 2001 (NSW), s 2 and Schedule 4, item [14]CASES CITED: Anderson Group Pty Ltd v Tynan Motors Pty Ltd [No. 2] [2006] NSWCA 120
Edgington v Clark [1964] 1 QB 367
Maitland Hospital v Fisher (No. 2) (1992) 27 NSWLR 721
Roads and Traffic Authority of NSW v Palmer (No. 2) [2005] NSWCA 140
State of New South Wales v Burton [No. 2] [2006] NSWCA 43
Suresh v Jacon Industries Pty Ltd (No. 2) [2005] NSWCA 270
Sved v Council of the Municipality of Woollahra (1998) NSW Con R 55-852PARTIES: Zoran Maricic - Appellant
Dalma Formwork (Australia) Pty Ltd - First Respondent/Cross-Claimant
Bovis Lend Lease Pty Ltd - Second Respondent
Dee Why Enterprises Pty Ltd - Cross-RespondentFILE NUMBER(S): CA 40148/05 COUNSEL: Mr B. Toomey QC/Mr J. Fernan - Appellant
Mr D.P. O'Dowd - First Respondent, Cross-Claimant
Mr G.M. Watson SC/Mr P.S. Braham - Second Respondent
Mr J. McIntyre SC/Mr A. Capelin - Cross-RespondentSOLICITORS: CMC Lawyers - Appellant
Curwood & Partners - First Respondent, Cross-Claimant
Yeldham & Associates - Second Respondent
Moray and Agnew - Cross-RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC13478/01 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 8 March 2005
CA 40148/05
DC 13478/0128 August 2006BEAZLEY JA
IPP JA
BASTEN JA
MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR (NO. 2)
Judgment
1 BEAZLEY JA: I agree with Ipp JA that the usual order for costs ought to be made in this matter. I also agree…
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Details
- Case
- [2006] NSWCA 237
- Decision Date
CaseChat Overview and Summary
The dispute in *Maricic v Dalma Formwork (Australia) Pty Ltd (No 2)* concerned the costs of an appeal where the appellant's appeal was successful in part, leading to the remission of the issue of damages to the District Court. Offers of compromise had been made by the parties during both the trial and the appeal. The Court of Appeal of New South Wales was required to determine the appropriate costs orders, particularly in light of these offers and the provisions of rule 20.26 of the *Uniform Civil Procedure Rules 2005*.
The primary legal issues before the Court of Appeal were whether rule 20.26 applied to the offers of compromise made during the appeal, and consequently, whether the successful appellant should be ordered to pay the costs of the appeal incurred prior to the assessment of damages. Additionally, the Court considered whether a *Bullock* order was appropriate regarding the costs of a cross-claim brought by the respondent against the appellant's employer. This latter issue arose because the appellant had not initially proceeded against the employer, and the concession that the appellant could not establish the minimum 15% permanent impairment, as required by section 151H of the *Workers Compensation Act 1987*, was only made during the appeal. The Court had to assess whether it was reasonable for the respondent to pursue the cross-claim in the absence of this concession and whether the successful appellant should bear the costs of the unsuccessful cross-claim.
The Court of Appeal determined that rule 20.26 of the *Uniform Civil Procedure Rules 2005* did not apply to the offers of compromise made during the appeal itself. The Court reasoned that the rule was intended to apply to offers made before the commencement of the hearing. Regarding the cross-appeal, the Court found that the respondent's decision to pursue the cross-claim against the employer was reasonable in the circumstances, given that the concession regarding the 15% permanent impairment was not made until the appeal. Consequently, the Court ordered that the appellant pay the cross-respondent's costs of the cross-appeal from 14 May 2006.
The primary legal issues before the Court of Appeal were whether rule 20.26 applied to the offers of compromise made during the appeal, and consequently, whether the successful appellant should be ordered to pay the costs of the appeal incurred prior to the assessment of damages. Additionally, the Court considered whether a *Bullock* order was appropriate regarding the costs of a cross-claim brought by the respondent against the appellant's employer. This latter issue arose because the appellant had not initially proceeded against the employer, and the concession that the appellant could not establish the minimum 15% permanent impairment, as required by section 151H of the *Workers Compensation Act 1987*, was only made during the appeal. The Court had to assess whether it was reasonable for the respondent to pursue the cross-claim in the absence of this concession and whether the successful appellant should bear the costs of the unsuccessful cross-claim.
The Court of Appeal determined that rule 20.26 of the *Uniform Civil Procedure Rules 2005* did not apply to the offers of compromise made during the appeal itself. The Court reasoned that the rule was intended to apply to offers made before the commencement of the hearing. Regarding the cross-appeal, the Court found that the respondent's decision to pursue the cross-claim against the employer was reasonable in the circumstances, given that the concession regarding the 15% permanent impairment was not made until the appeal. Consequently, the Court ordered that the appellant pay the cross-respondent's costs of the cross-appeal from 14 May 2006.
Orders
Orders of the court
Amend the orders made by this Court on 30 June 2006 by adding the following order:; (5A) Order the Appellant to pay to the Respondents the cross-respondent's costs of the cross-appeal from 14 May 2006.
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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