Singh v Harika (No 2) - [2005] NSWCA 212

NEW SOUTH WALES COURT OF APPEAL

CITATION: SINGH v HARIKA (NO.2) [2005] NSWCA 212

FILE NUMBER(S):
40808/2004

HEARING DATE(S): 20/04/2005

JUDGMENT DATE: 23/06/2005

PARTIES:
Roselyne Singh - Appellant
Amardeep Singh Harika - Respondent

JUDGMENT OF: Hodgson JA Bryson JA Campbell AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2159/00

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

COUNSEL:
Mr D. Cassidy QC with Mr M. Rollinson - Appellant
Mr P.R. Garling - Respondent

SOLICITORS:
Newman & Associates, Sydney - Appellant
Sparke Helmore, Sydney - Respondent

CATCHWORDS:
COSTS - offer of compromise in District Court - defendant offered sum greater than judgment in District Court - formal offer under DCR Pt.39A - defendant recovered costs from date of offer as in Pt.39A r.25 - an appeal, no offer was made and plaintiff as appellant recovered higher award but still below offer - appellant recovered costs of appeal.

LEGISLATION CITED:
District Court Rules Pt.39A r.25
Supreme Court Act 1970; s.76
Supreme Court Rules Pt.52A r.22

DECISION:
see [13]

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40808 OF 2004
HODGSON JA
BRYSON JA
M. W. CAMPBELL AJA
THURSDAY 23 JUNE 2005

ROSLYNE SINGH v. AMARDEEP SINGH HARIKA

Judgment

HODGSON JA: I agree with Bryson JA.
BRYSON JA: These reasons deal with costs. This Court made orders disposing of the appeal on 12 May 2005, but directed that the orders should not be entered so that the parties could make written submissions dealing with costs.
The appellant as plaintiff claimed unlimited damages in the District Court by Summons dated 26 March 2000. The action was heard by her Honour Judge Murrell SC on 17 to 20 February and 23 and 24 August 2004 and decided on 31 August 2004. Judgment was then given and was later varied to award the appellant damages of $403,812. Judge Murrell ordered that the respondent pay the appellant’s costs up to 21 September 2003 and that the appellant pay the respondent’s costs from 22 September 2003.
The appellant appealed, contending that the damages were too low and also that they should not be reduced for contributory negligence. The Notice of Appeal claimed that the damages should be re-assessed, and that the respondent should be ordered to pay the appellant’s costs of the entire action in the District Court and of the appeal.
The Court of Appeal allowed the appeal and increased the damages award to $491,812, an increase of $88,000. The Trial Judge’s decision on contributory negligence was affirmed. The Court proposed to make orders as to costs under which the costs order of the District Court was to stand, and the respondent was to pay the appellant’s costs of the appeal. However this was not a final decision and it was open to the parties to have it further considered. They have made short written submissions, and the Court can now dispose of costs.
The chronology is:
26 March 2000 Action commenced
22 September 2003 Offer of Compromise $700,000 +…

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.

Continue reading Singh v Harika (No 2)

Details

AGLC: Singh v Harika (No 2) [2005] NSWCA 212
Case: [2005] NSWCA 212
Decision Date: 23 June 2005

CaseChat Overview and Summary

In *Singh v Harika (No 2)*, the dispute concerned the recovery of costs following an appeal to the Supreme Court of Queensland. The original proceedings had been heard in the District Court, where the defendant had made a formal offer of compromise under Part 39A of the District Court Rules. This offer was for a sum greater than the judgment ultimately awarded to the plaintiff in the District Court. Consequently, the defendant was awarded costs from the date of the offer, as provided by rule 25 of Part 39A.

The appeal to the Supreme Court raised the issue of whether the plaintiff, as the appellant, was entitled to recover the costs of the appeal, despite the fact that the higher award obtained on appeal was still less than the defendant's original offer of compromise made in the District Court. The court was required to determine how the costs of the appeal should be allocated in light of the prior offer and the outcome of the appeal.

The Supreme Court held that the offer of compromise made in the District Court did not extend to the costs of the subsequent appeal. As the plaintiff, the appellant, had achieved a more favourable judgment on appeal than that awarded in the District Court, the plaintiff was entitled to recover the costs of the appeal. The court reasoned that the offer of compromise was specific to the proceedings in the District Court and did not encompass the costs incurred in a subsequent appellate proceeding where a different offer had not been made.

Orders

Orders of the court

see [13]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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