Cheng v Geussens (No 2) [2014] NSWCA 254

Cheng v Geussens (No 2) [2014] NSWCA 254

The appeal result was less favourable to Mr Cheng than the earlier offer of compromise from Mr Geussens, thus the offer should be considered in determining costs. Because the offer was not renewed in the appellate stage, costs should be awarded to the respondent on the ordinary basis, not indemnity. It is not appropriate to make costs orders regarding the District Court proceedings before all issues, including damages, are determined.

Parties
Applicant/appellant: Yingen Cheng by his tutor Gendi Qian; Respondent: Joachim Geussens
Jurisdiction
Australia
Judgment Date
04 August 2014
Procedural Posture
Appeal (costs) / Post Appeal Costs Determination
Outcome
Costs order varied; appellant to pay respondent's costs of the appeal on an ordinary basis; no order as to costs of respondent's notice of motion.
Legal Topics
Costs, Offers of Compromise, Indemnity Costs, Contributory Negligence
Civil Procedure Costs Offers of Compromise Indemnity Costs Contributory Negligence

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Parties

Yingen Cheng by his tutor Gendi Qian

Applicant/appellant

Joachim Geussens

Respondent

Procedural Posture

Appeal (costs) / Post Appeal Costs Determination

Legal Issues

  1. 1 Whether the appellant should pay the respondent's costs of the appeal and/or District Court proceedings on an indemnity basis from the day following the offer of compromise
  2. 2 Effect of failure to accept an offer of compromise where the appeal result was less favourable to the appellant than the offer
  3. 3 Appropriateness of making costs orders relating to District Court proceedings before damages are determined

Ratio Decidendi

The appeal result was less favourable to Mr Cheng than the earlier offer of compromise from Mr Geussens, thus the offer should be considered in determining costs. Because the offer was not renewed in the appellate stage, costs should be awarded to the respondent on the ordinary basis, not indemnity. It is not appropriate to make costs orders regarding the District Court proceedings before all issues, including damages, are determined.

Court Disposition

Costs order varied; appellant to pay respondent's costs of the appeal on an ordinary basis; no order as to costs of respondent's notice of motion.

Orders

  • Set aside order 4 made on 8 April 2014; order applicant/appellant pay respondent's costs of the appeal assessed on the ordinary basis.
  • No order as to the costs of the respondent's notice of motion filed 22 April 2014.