Tsu v Nemeth

The appeal concerned concurrent tortfeasors and the appropriate orders for costs following an apportionment of damages. The parties involved were Mr Peter Tsu, Mr Anthony Nemeth (as executor of the estate of the late Ferdinand Nemeth), and Piling Contractors (Qld) Pty Ltd (Piling), with Prynew Pty Ltd (in liq) also a significant party. The dispute arose from an action where damages had been apportioned between these parties. The court was the Court of Appeal of New South Wales.

The primary legal issues before the court were whether joint and several orders for costs were appropriate in circumstances where damages had been apportioned between concurrent tortfeasors, and the implications of a discontinuance by one party on the costs orders. Additionally, the court considered applications to re-open proceedings or for a new trial based on new evidence presented in hearsay form, where the witness was unavailable for cross-examination and their credibility could not be assessed.

The court dismissed the appeal by Mr Peter Tsu and the cross-appeals by Mr Anthony Nemeth and Piling. In relation to costs, the court made specific orders reflecting the apportionment of liability and the discontinuance of Prynew's involvement. Mr Peter Tsu and Prynew were ordered to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth jointly and severally up to the date of Prynew's discontinuance, after which Mr Peter Tsu was solely liable for those costs. Piling was ordered to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth in relation to its cross-appeal. Further orders detailed the apportionment of costs between Mr Peter Tsu, Prynew, and Piling concerning the costs payable to the plaintiff, with provisions for set-off and an opportunity for the liquidator of Prynew to apply to set aside certain cost orders. No order was made as to the costs of Virginia Nemeth.