Stewart v Tsueneaki

[2012] ACTSC 159

ROD STEWART v AOKI TSUENEAKI
[2012] ACTSC 159 (19 October 2012)

PRACTICE AND PROCEDURE – costs – claim for damages for personal injury – Calderbank offer – whether effective – offer rejected – plaintiff recovering greater amount on hearing – defendant ordered to pay costs after expiry of offer as between solicitor and client
PRACTICE AND PROCEDURE – stay of proceedings after judgment pending appeal – appeal from assessment of damages for personal injury – applicable principles – factors to be taken into account – stay ordered conditionally on payment of part of judgment sum and on prompt prosecution of appeal

Court Procedures Rule 2006 (ACT) r 5301(1)

Kennedy v CCB (ACT) Pty Ltd [2012] ACTSC 120
Kemp v Ryan [2012] ACTCA 12
Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Cellante v G Kallis Industries Ltd [1991] 2 VR 653
Griffiths v Australian Postal Commission (1987) 87 FLR 139
Transpacific Cleanaway Pty Ltd v Cairns [2012] NSWCA 294

No.  SC 187 of 2009

Judge:             Master Harper
Supreme Court of the ACT

Date:              19 October 2012

IN THE SUPREME COURT OF THE     )
  )          No.  SC 187 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:ROD STEWART

Plaintiff

AND:AOKI TSUENEAKI

Defendant

ORDER

Judge:  Master Harper
Date:  19 October 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. the defendant pay the plaintiff’s costs up to and including 10 August 2010 as between party and party.

1. the defendant pay the plaintiff’s costs subsequent to that date as between solicitor and client.

1. the judgment directed on 24 August 2012 to be entered be stayed until further order on condition that the defendant pays to the plaintiff the sum of $236,646.00 and prosecutes the appeal from that judgment without delay.

1. The defendant pay the plaintiff’s costs of the application in proceeding dated 6 September 2012.

1. On 24 August 2012 I delivered judgment for the plaintiff in this action for damages for personal injury, for $336,646.00, following a defended hearing.

1. On 6 September 2012 the defendant filed a notice of appeal.  Although liability was in issue at the trial, the appeal is as to quantum of damages only.

1. I have since heard submissions from counsel as to costs, and an application by the defendant for a stay of execution of my judgment pending the hearing and determination of the appeal.

Costs

1. The plaintiff seeks the usual order for costs up to the date of a rejected Calderbank offer, and thereafter costs on a more generous basis.  Counsel for the plaintiff initially sought an order for those costs on an indemnity basis but indicated during submissions that his client would be content with an order that those costs be assessed as between solicitor and client.

1. There were a number of offers made by the plaintiff and…