Diamond v Simpson (No 2) [2003] NSWCA 78

Diamond v Simpson (No 2) [2003] NSWCA 78

The Court declined to disturb Whealy J's trial costs order. By majority, the appellant's substantial monetary success on appeal, reducing the verdict by about $3.2 million, was a more significant factor than the appellant's failure to reduce the judgment below the first respondent's $10.5 million offer of compromise; however, because the appellant failed on some non-insignificant issues, fairness required an apportioned order that the first respondent pay 66% of the appellant's costs of the appeal.

Jurisdiction
Australia
Judgment Date
09 April 2003
Procedural Posture
Costs of Appeal / Judgment on Costs After Appeal Judgment
Outcome
Costs order of lower court not disturbed. First respondent to pay 66% of the appellant's costs of the appeal.
Legal Topics
['costs of Appeal' 'offer of Compromise' 'indemnity Costs' 'apportionment of Costs' 'supreme Court Rules Pt 52 a R11']
['civil Procedure' 'costs'] ['costs of Appeal' 'offer of Compromise' 'indemnity Costs' 'apportionment of Costs' 'supreme Court Rules Pt 52 a R11']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs of Appeal / Judgment on Costs After Appeal Judgment

Legal Issues

  1. 1 ["Whether the trial judge's costs order should be recalled or disturbed." 'Whether an offer of compromise made before trial continued to have costs consequences for the appeal.' "Whether the appellant should pay the first respondent's appeal costs on an indemnity basis or receive an apportioned costs order because of success on appeal." 'What proportion of the costs of the appeal should be awarded having regard to success and failure on issues.']

Ratio Decidendi

The Court declined to disturb Whealy J's trial costs order. By majority, the appellant's substantial monetary success on appeal, reducing the verdict by about $3.2 million, was a more significant factor than the appellant's failure to reduce the judgment below the first respondent's $10.5 million offer of compromise; however, because the appellant failed on some non-insignificant issues, fairness required an apportioned order that the first respondent pay 66% of the appellant's costs of the appeal.

Court Disposition

Costs order of lower court not disturbed. First respondent to pay 66% of the appellant's costs of the appeal.

Orders

  • ["The first respondent pay 66 per cent of the appellant's costs of the appeal." 'The first respondent receive a certificate under the Suitors Fund Act if otherwise entitled.' 'Liberty to apply on notice to the panel hearing other aspects of the appeal, Meagher JA, Ipp JA and Young CJ in Eq.']