EVANS v MARMONT [1997] NSWCA 104

EVANS v MARMONT [1997] NSWCA 104

The result of the appeal does not affect the reasoning leading to the Master's costs orders at first instance; those orders should not be disturbed. As the parties' offers were Calderbank offers and not made under the rules, the decision in Ettingshausen does not apply. Given the mixed success on appeal, with the appellant gaining more but still not exceeding the respondent's offers, there should be no order as to the costs of the appeal. Priestley JA, dissenting, considered the appellant should get half the costs of appeal.

Parties
Appellant: Evans; Respondent: Marmont
Jurisdiction
Australia
Judgment Date
26 August 1997
Procedural Posture
Appeal / Post Judgment (costs Submissions)
Outcome
No order as to the costs of the appeal (majority); Master's costs orders at first instance undisturbed; Respondent to have a certificate under the Suitors' Fund Act; Dissent: half the appellant's costs of the appeal to be borne by respondent (Priestley JA)
Legal Topics
Costs, Offers of Compromise, Calderbank Offers, Appeals
Civil Procedure Costs Offers of Compromise Calderbank Offers Appeals

Case Brief

Summary, issues, holding and outcome

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Parties

Evans

Appellant

Marmont

Respondent

Procedural Posture

Appeal / Post Judgment (costs Submissions)

Legal Issues

  1. 1 Whether the costs orders made by the Master at first instance should be disturbed after the appeal outcome
  2. 2 Whether respondent's Calderbank offers impact the costs of appeal
  3. 3 Application of Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404 to non-rule-based offers

Ratio Decidendi

The result of the appeal does not affect the reasoning leading to the Master's costs orders at first instance; those orders should not be disturbed. As the parties' offers were Calderbank offers and not made under the rules, the decision in Ettingshausen does not apply. Given the mixed success on appeal, with the appellant gaining more but still not exceeding the respondent's offers, there should be no order as to the costs of the appeal. Priestley JA, dissenting, considered the appellant should get half the costs of appeal.

Court Disposition

No order as to the costs of the appeal (majority); Master's costs orders at first instance undisturbed; Respondent to have a certificate under the Suitors' Fund Act; Dissent: half the appellant's costs of the appeal to be borne by respondent (Priestley JA)

Orders

  • No order as to costs of appeal (majority)
  • Master's costs orders of 20 March 1995 undisturbed