State of NSW v Doherty (No 2) [2011] NSWCA 350

State of NSW v Doherty (No 2) [2011] NSWCA 350

The respondent's motion succeeded because the substantive judgment required variation to reflect the varied judgment below, and the respondent's offer of compromise was less than the judgment ultimately substituted by the Court; the appellant failed to better the offer and disclosed no reason for the Court to otherwise order under UCPR Pt 42 r 42.14, particularly where most grounds of appeal failed.

Jurisdiction
Australia
Judgment Date
21 November 2011
Procedural Posture
Appeal; Notice of Motion for Variation of Judgment and Costs / Post Judgment Motion Determined on the Papers
Outcome
Respondent's motion of 18 August 2011 succeeds.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'variation of Judgment' 'appeal Costs']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'variation of Judgment' 'appeal Costs']

Case Brief

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Procedural Posture

Appeal; Notice of Motion for Variation of Judgment and Costs / Post Judgment Motion Determined on the Papers

Legal Issues

  1. 1 ['Whether the substantive judgment should be varied because the Court was not informed that the judgment below had been varied.' "Whether the appellant should pay the respondent's costs of the appeal on the ordinary basis up to 11 October 2010 and thereafter on an indemnity basis following an offer of compromise."]

Ratio Decidendi

The respondent's motion succeeded because the substantive judgment required variation to reflect the varied judgment below, and the respondent's offer of compromise was less than the judgment ultimately substituted by the Court; the appellant failed to better the offer and disclosed no reason for the Court to otherwise order under UCPR Pt 42 r 42.14, particularly where most grounds of appeal failed.

Court Disposition

Respondent's motion of 18 August 2011 succeeds.

Orders

  • ['Judgment for $678,652.15 substituted for that entered by this Court on 5 August 2011.' "The appellant to pay the respondent's costs of the appeal on the ordinary basis up to and including 11 October 2010, and thereafter on an indemnity basis including the costs of this motion."]