Roads and Traffic Authority v Cremona (No 3) - [2005] NSWCA 13

Reported Decision:
140 LGERA 420

Court of Appeal

CITATION:
ROADS AND TRAFFIC AUTHORITY v CREMONA [NO 3] [2005] NSWCA 13

HEARING DATE(S):
19 September 2001, 20 September 2001, 30 November 2001

JUDGMENT DATE:

11 February 2005

JUDGMENT OF:
Sheller JA

DECISION:
1. The appellant pay interest on the costs paid by the respondent as itemised in Schedule "I" to the affidavit of Lilian See of 1 September 2004 from the dates of payment set out in the said schedule at the Supreme Court interest rates set out for each period in the said schedule.; 2. The appellant is to pay the costs of this appication on an indemnity basis.

LEGISLATION CITED:
Supreme Court Act 1970
Legal Profession Act 1987
Land and Environment Court Act 1979

CASES CITED:
Timms v Commonwealth Bank of Australia & Ors [No 4] [2004] NSWCA 25
Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342
T A Field Pty Ltd v Frigmobile of Australia Pty Ltd (1978) 2 NSWLR 488
Grogan v Thiess Contractors Pty Ltd & Anor [2000] NSWSC 1101
Davies v Ku-ring-gai Municipal Council [2003] NSWSC 1010
Hughes Bros v Trustees of the Roman Catholic Church [1999] NSWSC 1051
Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd [2002] NSWSC 280

PARTIES:
Roads and Traffic Authority - Appellant
Minna Maarit Cremona - Respondent

FILE NUMBER(S):
CA 40652/00

COUNSEL:
C T Barry QC/A Porthouse - Appellant
B M J Toomey QC/M Kumar - Respondent

SOLICITORS:
I V Knight - State Crown Solicitor - Appellant
Riley, Gray-Spencer - Respondent

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
75/94

LOWER COURT JUDICIAL OFFICER:
Dowd J

CA 40652/00
CL 75/94

SHELLER JA
Friday, 11 February 2005

ROADS & TRAFFIC AUTHORITY v CREMONA [NO 3]

Judgment

1 SHELLER JA: On 16 November and 7 December 2001 the Court gave judgments in this appeal by the Roads & Traffic Authority (RTA) and in the respondent, Mrs Cremona’s, cross-appeal. In the judgment of 7 December 2001 I noted that on 26 July 1995 Mrs Cremona had made an offer of compromise for $3,500,000. The RTA rejected this offer and proceeded to trial before Dowd J, who awarded Mrs Cremona $5,091,601 damages. The RTA appealed. By letter dated 15 August 2001, Mrs Cremona offered to compromise the proceedings for $4,650,000, inclusive of out of pocket expenses and payments made, plus party/party costs as agreed or assessed in full satisfaction of her claim against the RTA. The offer remained open for twenty-eight days from its date and was made in accordance with Pt 52A r22 of the Supreme Court Rules. In my judgment of 7 December 2001, I noted: “The RTA did not deign to respond.” The agreed substituted verdict in this Court was $5,788,900. The Court ordered the RTA to pay Mrs Cremona’s costs of the appeal and cross-appeal on an indemnity basis.

2 By notice of motion filed on 2 September 2004, Mrs Cremona applied for…

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.

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Details

Case: [2005] NSWCA 13
Decision Date: 11 February 2005

CaseChat Overview and Summary

The case of *Roads and Traffic Authority v Cremona (No 3)* concerned an appeal before Sheller JA of the Supreme Court of New South Wales. The dispute revolved around the payment of interest on costs previously paid by the respondent to the appellant.

The primary legal issue before the Court was whether the appellant was liable to pay interest on the costs that the respondent had paid, and if so, on what basis and at what rate. The Court was also required to determine the basis upon which the costs of the application itself should be paid.

Sheller JA ordered that the appellant pay interest on the costs paid by the respondent, as itemised in a specific affidavit, from the respective dates of payment. The interest was to be calculated at the Supreme Court interest rates applicable for each period. Furthermore, the appellant was ordered to pay the costs of the application on an indemnity basis.

Orders

Orders of the court

1. The appellant pay interest on the costs paid by the respondent as itemised in Schedule "I" to the affidavit of Lilian See of 1 September 2004 from the dates of payment set out in the said schedule at the Supreme Court interest rates set out for each period in the said schedule.; 2. The appellant is to pay the costs of this appication on an indemnity basis.

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.

CITATION:	ROADS AND TRAFFIC AUTHORITY v CREMONA [NO 3] [2005] NSWCA 13
HEARING DATE(S):	19 September 2001, 20 September 2001, 30 November 2001
JUDGMENT DATE:	11 February 2005
JUDGMENT OF:	Sheller JA
DECISION:	1. The appellant pay interest on the costs paid by the respondent as itemised in Schedule "I" to the affidavit of Lilian See of 1 September 2004 from the dates of payment set out in the said schedule at the Supreme Court interest rates set out for each period in the said schedule.; 2. The appellant is to pay the costs of this appication on an indemnity basis.

LEGISLATION CITED:	Supreme Court Act 1970 Legal Profession Act 1987 Land and Environment Court Act 1979
CASES CITED:	Timms v Commonwealth Bank of Australia & Ors [No 4] [2004] NSWCA 25 Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342 T A Field Pty Ltd v Frigmobile of Australia Pty Ltd (1978) 2 NSWLR 488 Grogan v Thiess Contractors Pty Ltd & Anor [2000] NSWSC 1101 Davies v Ku-ring-gai Municipal Council [2003] NSWSC 1010 Hughes Bros v Trustees of the Roman Catholic Church [1999] NSWSC 1051 Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd [2002] NSWSC 280
PARTIES:	Roads and Traffic Authority - Appellant Minna Maarit Cremona - Respondent
FILE NUMBER(S):	CA 40652/00
COUNSEL:	C T Barry QC/A Porthouse - Appellant B M J Toomey QC/M Kumar - Respondent
SOLICITORS:	I V Knight - State Crown Solicitor - Appellant Riley, Gray-Spencer - Respondent

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	75/94
LOWER COURT JUDICIAL OFFICER:	Dowd J