Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736

Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736

Indemnity costs were not awarded because, at the time of the relevant offer, both parties were proceeding on the assumption quantum was governed by the Civil Liability Act 2002. Later developments in the legal framework affecting quantum warranted departing from the ordinary consequence of rejecting the offer. The...

Source-derived case information.

Parties
Plaintiff: Ghita Nair-Smith; Defendant: Perisher Blue Pty Ltd
Jurisdiction
Australia
Judgment Date
27 November 2013
Procedural Posture
Costs Application in Proceedings for Negligence and Breach of Contract / Post Trial; Judgment on Costs and Final Orders
Outcome
Judgment for Plaintiff. Orders as to costs made.
Legal Topics
Costs, Offers of Compromise, Negligence, Breach of Implied Statutory Terms, Damages
Civil Procedure Tort Law Contract Law Costs Offers of Compromise Negligence Breach of Implied Statutory Terms Damages

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Parties

Ghita Nair-Smith

Plaintiff

Perisher Blue Pty Ltd

Defendant

Procedural Posture

Costs Application in Proceedings for Negligence and Breach of Contract / Post Trial; Judgment on Costs and Final Orders

Legal Issues

  1. 1 Whether indemnity costs should be awarded to the Plaintiff based on rejected offers of compromise
  2. 2 Whether the Plaintiff's conduct and amendments warranted some other order as to costs
  3. 3 Whether Defendant's costs should be distinguished on specific issues or hearings

Ratio Decidendi

Indemnity costs were not awarded because, at the time of the relevant offer, both parties were proceeding on the assumption quantum was governed by the Civil Liability Act 2002. Later developments in the legal framework affecting quantum warranted departing from the ordinary consequence of rejecting the offer. The Plaintiff, having substantially succeeded in the proceedings, is entitled to costs on the ordinary basis except as adjusted by specific interlocutory or amendment-related costs.

Court Disposition

Judgment for Plaintiff. Orders as to costs made.

Orders

  • Judgment for the Plaintiff against the Defendant in the sum of $1,368,700.00.
  • The Plaintiff pay the Defendant's costs thrown away on vacation of the hearing fixed in the District Court of New South Wales on 2 to 6 February 2009 including costs of the Plaintiff's Notice of Motion dated 21 and 29 January 2009 heard before Toner DCJ commencing 2 February 2009.