Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277

Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277

The appellant was substantially successful on the appeal because the erroneous exclusion of his expert evidence required the judgment below to be set aside and a new trial ordered, while the respondent's success on the remaining damages issue was minimal; the appellant was therefore entitled to the costs of the appeal on the ordinary basis. Indemnity costs based on the offer of compromise could not presently be ordered because no final damages judgment existed and liability remained contingent on the retrial, so UCPR r 51.48(2) required the offer to be disregarded for now. The costs of the first trial should remain in the discretion of the judge conducting the new trial because the...

Jurisdiction
Australia
Judgment Date
14 September 2015
Procedural Posture
Costs Determination in a Personal Injury Damages Appeal / On the Papers After the Court of Appeal Allowed the Appeal and Ordered a New Trial Limited to Liability and Contributory Negligence
Outcome
Costs orders made; District Court costs order set aside; appellant awarded ordinary costs of the appeal except for the special costs application; costs of the first trial left to the new trial judge; respondent granted a Suitors' Fund certificate.
Legal Topics
['costs of Appeal' 'costs of First Trial After New Trial Ordered' 'offer of Compromise' 'indemnity Costs' "suitors' Fund Certificate" 'wrongful Exclusion of Expert Evidence']
['costs' 'civil Procedure' 'personal Injury'] ['costs of Appeal' 'costs of First Trial After New Trial Ordered' 'offer of Compromise' 'indemnity Costs' "suitors' Fund Certificate" 'wrongful Exclusion of Expert Evidence']

Case Brief

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Procedural Posture

Costs Determination in a Personal Injury Damages Appeal / On the Papers After the Court of Appeal Allowed the Appeal and Ordered a New Trial Limited to Liability and Contributory Negligence

Legal Issues

  1. 1 ['Whether the appellant should have the costs of the appeal despite unsuccessful or abandoned grounds concerning damages.' "Whether the appellant's offer of compromise justified indemnity costs from 17 December 2014." "Whether the Court of Appeal should order the respondent to pay the appellant's costs of the first District Court trial or leave those costs to the judge conducting the new trial." 'Whether any order should be made as to the costs of the application for special costs orders.' "Whether the respondent should receive a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal."]

Ratio Decidendi

The appellant was substantially successful on the appeal because the erroneous exclusion of his expert evidence required the judgment below to be set aside and a new trial ordered, while the respondent's success on the remaining damages issue was minimal; the appellant was therefore entitled to the costs of the appeal on the ordinary basis. Indemnity costs based on the offer of compromise could not presently be ordered because no final damages judgment existed and liability remained contingent on the retrial, so UCPR r 51.48(2) required the offer to be disregarded for now. The costs of the first trial should remain in the discretion of the judge conducting the new trial because the...

Court Disposition

Costs orders made; District Court costs order set aside; appellant awarded ordinary costs of the appeal except for the special costs application; costs of the first trial left to the new trial judge; respondent granted a Suitors' Fund certificate.

Orders

  • ['Set aside the order for costs made in the District Court on 20 June 2014.' "The respondent is to pay the appellant's costs of the appeal (assessed on the ordinary basis), excluding the costs of the application for special costs orders." 'The costs of the first trial be in the discretion of the judge before whom...