Mendonca v Tonna (No 3)

The parties to this matter were Dr Mendonca (the appellant) and the respondents. The dispute concerned an application to reopen a judgment that had dismissed an appeal, with the application relying partly on further evidence not previously presented. The matter came before Bell P, Meagher and Payne JJA of the Court of Appeal of New South Wales.

The Court was required to determine two primary legal issues. Firstly, whether the judgment dismissing the appeal should be reopened, particularly in light of the "further" evidence tendered. Secondly, the Court had to consider whether the costs of the appeal should be awarded on an ordinary or indemnity basis, given an offer of compromise and the outcome for the offeree.

The Court dismissed Dr Mendonca's application to reopen the judgment, finding no issue of principle that would warrant such a course, especially given the nature of the further evidence. Regarding costs, the Court varied a previous order. It ordered that the appellant pay the respondents’ costs of the appeal assessed on the ordinary basis up to and including 22 May 2020, and on an indemnity basis from 23 May 2020 onwards. This decision reflected the Court's assessment of the reasonableness of rejecting the offer of compromise in light of the subsequent proceedings. The Court also ordered Dr Mendonca to pay the respondents’ costs of his amended notice of motion and of the respondents’ notice of motion.