Sims v The Commonwealth (No 2)

[2023] NSWCA 30

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sims v The Commonwealth (No 2) [2023] NSWCA 30

Hearing dates:

On the papers

Date of orders:

23 February 2023

Decision date:

23 February 2023

Before:

Bell CJ; Meagher JA; White JA

Decision:

(1)   Vary orders 1 and 2 made by the District Court of New South Wales on 19 November 2021 as follows:

“(1)     Judgment and verdict for the plaintiff in the sum of $117,253.03.

(2) Interest thereon at the rates pertaining from time to time pursuant to s 100 of the Civil Procedure Act 2005 (NSW) commencing on and from 5 February 2018 to 19 November 2021.”

(2)   Set aside order 3 made by the District Court of New South Wales on 19 November 2021.

(3)   The Commonwealth is to pay 75% of Mr Sims’ costs at first instance on an ordinary basis.

(4)   The Commonwealth is to pay 90% of Mr Sims’ costs of the appeal on an ordinary basis.

Catchwords:

COSTS – mixed outcome on appeal – where quantum of damages awarded to the respondent at first instance was substantially reduced on appeal – where principal issue on appeal was resolved in favour of the appellant – where settlement offers made by both parties before the proceedings at first instance – whether it was unreasonable for the respondent to reject the appellant’s settlement offers – appropriate costs orders with respect to the costs of the trial and the appeal

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Ryde Developments Pty Ltd v The Property Investing Alliance Pty Ltd [2018] NSWCA 40

Category:

Costs

Parties:

Jeremy Mark Sims (Appellant)
Commonwealth of Australia (Respondent)

Representation:

Counsel:

S Duggan (Appellant)
J Hogan-Doran SC with D Robertson (Respondent)

Solicitors:

Blake Lawyers (Appellant)
Australian Government Solicitor (Respondent)

File Number(s):

2021/00358248

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 690

Date of Decision:

19 November 2021

Before:

Weber SC DCJ

File Number(s):

2019/00142574

JUDGMENT

1. THE COURT: The Court gave judgment in this matter on 4 October 2022: Sims v Commonwealth of Australia [2022] NSWCA 194. An appeal was allowed and the parties were directed to formulate orders in accordance with the Court’s reasons, and to file written submissions as to costs. These short reasons addressing costs assume familiarity with our earlier reasons.

2. Noting that an order has already been made allowing the appeal, the parties are agreed that the following order should also be made:

“Vary orders 1 and 2 made by the District Court of New South Wales on 19 November 2021 as follows:

(a)   Judgment and verdict for the plaintiff in the sum of $117,253.03;

(b) Interest thereon at the rates pertaining from time to time pursuant to s 100 of the Civil Procedure Act 2005 (NSW) commencing on and from 5 February 2018 to 19 November 2021.”

3. The Commonwealth was the plaintiff in the proceedings at first instance and…