Rodger v De Gelder (No 2)

Court of Appeal

New South Wales

Case Title:	Rodger v De Gelder & Anor (No 2)
Medium Neutral Citation:	[2011] NSWCA 235
Hearing Date(s):	On the papers
Decision Date:	11 August 2011
Jurisdiction:
Before:	Beazley JA at 1;  McColl JA at 23;  Macfarlan JA at 24
Decision:	1. Set aside that part of order 6 made on 20 April 2011 relating to the costs of the appeal; 2. Order that the first respondent pay one third of the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - costs on appeal - new issues raised on appeal - appellant successful on one only of the principal issues argued - first respondent to pay one third of appellant's costs of the appeal
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:
Texts Cited:
Category:	Costs
Parties:	James Norman Barr Rodger (Appellant) Adam Roy De Gelder (First Respondent) Motor Accidents Authority of NSW (Second Respondent)
Representation
- Counsel:	M A Robinson (Appellant) A C Canceri (First Respondent) Submitting appearance (Second Respondent)
- Solicitors:	Curwoods Lawyers (Appellant) CMC Lawyers (First Respondent) Crown Solicitors Office (Second Respondent)
File number(s):	2009/297971
Decision Under Appeal
- Court / Tribunal:
- Before:	Davies J
- Date of Decision:	18 December 2009
- Citation:	De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173
- Court File Number(s)	SC 30018/2009
Publication Restriction:

Judgment

1. BEAZLEY JA : The Court gave its principal judgment in this matter on 20 April 2011: Rodger v De Gelder & Anor [2011] NSWCA 97. The Court granted leave to appeal; allowed the appeal; set aside the orders of the trial judge and ordered that the first respondent's summons be dismissed. Relevant to the motion the subject of these proceedings, the Court also ordered the first respondent to pay the appellant's costs at first instance and on appeal (order 6). An order under the Suitors' Fund Act 1951 was also made (order 7).

1. By notice of motion filed on 4 May 2011 (as amended on 17 May 2011 to correct an error in the identification of the parties) the first respondent sought the following orders pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 36.16:

"1. An order that orders 6 and 7 made by this Court on 20 April 2011 be set aside pursuant to Rule 36.16 of the Uniform Civil Procedure Rules 2005.

2. An order that the appellant pay the first respondent's costs of the hearing of the summons at first instance or alternatively an order that each party pay their own costs of the hearing of the summons at first instance.

3.…