Maricic v Dalma Formwork (Australia) Pty Ltd (No 2)

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.