The Nominal Defendant v Cordin [2019] NSWCA 85

The Nominal Defendant v Cordin [2019] NSWCA 85

The primary judge took the careful approach required in a Nominal Defendant case, considered the evidence relied on by the appellant, and made findings open on the evidence that the respondent was shunted from behind by an unidentified motor vehicle. Those findings were not shown to be wrong by incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences. The respondent obtained judgment more favourable than his offer of compromise, so UCPR r 42.14 applied, and the appellant's asserted reasonable conduct did not justify refusing indemnity costs.

Jurisdiction
Australia
Judgment Date
24 April 2019
Procedural Posture
Appeal From District Court of NSW Civil Motor Accident Damages Proceedings / Court of Appeal Appeal After Retrial
Outcome
Appeal dismissed.
Legal Topics
['nominal Defendant Claims' 'unidentified Motor Vehicle' 'appellate Review of Findings of Fact' 'offers of Compromise' 'indemnity Costs Under UCPR R 42.14']
['traffic Law and Transport' 'motor Accident Legislation' 'appeal and New Trial' 'costs'] ['nominal Defendant Claims' 'unidentified Motor Vehicle' 'appellate Review of Findings of Fact' 'offers of Compromise' 'indemnity Costs Under UCPR R 42.14']

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Procedural Posture

Appeal From District Court of NSW Civil Motor Accident Damages Proceedings / Court of Appeal Appeal After Retrial

Legal Issues

  1. 1 ["Whether the primary judge erred in finding that the respondent's bicycle was struck from behind by an unidentified motor vehicle rather than that the bicycle hit a pothole." 'Whether cases involving the Nominal Defendant require a special or careful approach to evaluating evidence, and whether that approach was taken.' "Whether the primary judge's findings of fact were shown to be wrong by incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences." "Whether the indemnity costs order following the respondent's offer of compromise should be set aside because the appellant acted reasonably in defending the proceedings."]

Ratio Decidendi

The primary judge took the careful approach required in a Nominal Defendant case, considered the evidence relied on by the appellant, and made findings open on the evidence that the respondent was shunted from behind by an unidentified motor vehicle. Those findings were not shown to be wrong by incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences. The respondent obtained judgment more favourable than his offer of compromise, so UCPR r 42.14 applied, and the appellant's asserted reasonable conduct did not justify refusing indemnity costs.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "The appellant to pay the respondent's costs of the appeal."]