Mendonca v Tonna (No 3) [2020] NSWCA 332

Mendonca v Tonna (No 3) [2020] NSWCA 332

Dr Mendonca failed to demonstrate any basis for reopening the judgment or setting it aside; her 'further' evidence could not be shown to have been unavailable with reasonable diligence, nor was it considered credible or likely to affect the outcome. There was no irregularity, illegality or lack of good faith. The respondents' offer of compromise was a genuine compromise, and her rejection of it was not reasonable; as such, indemnity costs from after the offer date are appropriate.

Parties
Applicant: Renuka Mendonca; First Respondent: Mark Tonna; Second Respondent: Lorraine Tonna
Jurisdiction
Australia
Judgment Date
16 December 2020
Procedural Posture
Civil Appeal / Post Appeal Motions and Costs Applications
Outcome
applicant's notice of motion dismissed; costs orders varied and indemnity costs awarded to respondents
Legal Topics
Variation of Judgment, Costs, Admission of Further Evidence, Application to Reopen Judgment
Civil Procedure Variation of Judgment Costs Admission of Further Evidence Application to Reopen Judgment

Case Brief

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Parties

Renuka Mendonca

Applicant

Mark Tonna

First Respondent

Lorraine Tonna

Second Respondent

Procedural Posture

Civil Appeal / Post Appeal Motions and Costs Applications

Legal Issues

  1. 1 Whether the Court should set aside or vary its judgment under UCPR rr 36.15 or 36.16
  2. 2 Whether to reopen judgment to admit further evidence
  3. 3 Whether costs should be awarded on an indemnity basis

Ratio Decidendi

Dr Mendonca failed to demonstrate any basis for reopening the judgment or setting it aside; her 'further' evidence could not be shown to have been unavailable with reasonable diligence, nor was it considered credible or likely to affect the outcome. There was no irregularity, illegality or lack of good faith. The respondents' offer of compromise was a genuine compromise, and her rejection of it was not reasonable; as such, indemnity costs from after the offer date are appropriate.

Court Disposition

applicant's notice of motion dismissed; costs orders varied and indemnity costs awarded to respondents

Orders

  • Vary order 3 made on 26 August 2020: Appellant pay respondents' costs of the appeal to be assessed up to and including 22 May 2020 on the ordinary basis, and from 23 May 2020 on an indemnity basis.
  • Dismiss Dr Mendonca's amended notice of motion filed 4 September 2020.