Roads and Traffic Authority of New South Wales v Turner and Anor [No 2] [2008] NSWCA 241

Roads and Traffic Authority of New South Wales v Turner and Anor [No 2] [2008] NSWCA 241

Because the plaintiff ultimately recovered substantially more than his pre-trial offer, he was entitled to indemnity costs of the trial from the date of the offer. However, the RTA substantially succeeded on the appeal by obtaining a significant reduction for contributory negligence, and the pre-trial offer had little weight in determining appellate costs because the appeal was a fresh proceeding focused on narrower issues and no appeal-stage offer was made. AAMI also showed no reason to vary the order requiring it to pay one half of the RTA's appeal costs.

Jurisdiction
Australia
Judgment Date
07 October 2008
Procedural Posture
Notice of Motion for Variation of Costs Orders Following Appeal / Consequential Orders in the Court of Appeal
Outcome
Order 5 made on 2 April 2008 was varied as to trial costs; the Notice of Motion was otherwise dismissed; the plaintiff was ordered to pay the appellant's and second respondent's costs of the Notice of Motion.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'costs of Appeal' 'contributory Negligence' 'contribution']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'costs of Appeal' 'contributory Negligence' 'contribution']

Case Brief

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Procedural Posture

Notice of Motion for Variation of Costs Orders Following Appeal / Consequential Orders in the Court of Appeal

Legal Issues

  1. 1 ["Whether the plaintiff's pre-trial offer of compromise entitled him to indemnity costs of the trial after the offer when the judgment was reduced on appeal but remained above the offer." "Whether the plaintiff's pre-trial offer of compromise should alter the costs orders for the successful appeal." "Whether the order that AAMI pay one half of the RTA's costs of the appeal should be varied."]

Ratio Decidendi

Because the plaintiff ultimately recovered substantially more than his pre-trial offer, he was entitled to indemnity costs of the trial from the date of the offer. However, the RTA substantially succeeded on the appeal by obtaining a significant reduction for contributory negligence, and the pre-trial offer had little weight in determining appellate costs because the appeal was a fresh proceeding focused on narrower issues and no appeal-stage offer was made. AAMI also showed no reason to vary the order requiring it to pay one half of the RTA's appeal costs.

Court Disposition

Order 5 made on 2 April 2008 was varied as to trial costs; the Notice of Motion was otherwise dismissed; the plaintiff was ordered to pay the appellant's and second respondent's costs of the Notice of Motion.

Orders

  • ["Order 5 made by this Court on 2 April 2008 is vacated and there is substituted an order that the defendants pay the plaintiff's costs of the action on the ordinary basis up to 26 May 2005, and pay his costs on an indemnity basis thereafter." 'Notice of Motion otherwise dismissed.' 'The first respondent, the...