CRISP v KENG [1993] NSWCA 78

CRISP v KENG [1993] NSWCA 78

The majority (Priestley and Cripps JJA) held that the costs order was a matter of discretion for the trial judge and that no relevant error in the exercise of that discretion had been shown, so the refusal to order indemnity costs would not be disturbed. Kirby P dissented, holding that the primary judge's decision was affected by irrelevant considerations and should be set aside, with the matter remitted for reconsideration.

Parties
Appellant: Roger Crisp; Respondent: Dr Gul Keng; Defendant: Albury Base Hospital
Jurisdiction
Australia
Judgment Date
27 September 1993
Procedural Posture
Appeal / Appeal From a Costs Order Following Trial Decision
Outcome
Appeal dismissed with costs (majority); Kirby P would have allowed the appeal and remitted for reconsideration.
Legal Topics
Costs, Indemnity Costs, Offer of Compromise, Discretion in Costs Orders
Civil Procedure Costs Indemnity Costs Offer of Compromise Discretion in Costs Orders

Case Brief

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Parties

Roger Crisp

Appellant

Dr Gul Keng

Respondent

Albury Base Hospital

Defendant

Procedural Posture

Appeal / Appeal From a Costs Order Following Trial Decision

Legal Issues

  1. 1 Whether the primary judge erred in refusing to award indemnity costs to the plaintiff under Pt52 R17 of the Supreme Court Rules after a rejected offer of compromise resulted in a less favourable judgment for the defendant.
  2. 2 Whether the reasons given by the trial judge for refusing indemnity costs were extraneous or irrelevant to the operation of the indemnity costs rule.

Ratio Decidendi

The majority (Priestley and Cripps JJA) held that the costs order was a matter of discretion for the trial judge and that no relevant error in the exercise of that discretion had been shown, so the refusal to order indemnity costs would not be disturbed. Kirby P dissented, holding that the primary judge's decision was affected by irrelevant considerations and should be set aside, with the matter remitted for reconsideration.

Court Disposition

Appeal dismissed with costs (majority); Kirby P would have allowed the appeal and remitted for reconsideration.

Orders

  • Appeal dismissed with costs.