Thomas William Vale v Timothy David Eggins (No 2) [2007] NSWCA 12

Thomas William Vale v Timothy David Eggins (No 2) [2007] NSWCA 12

The majority held that although the result obtained by the appellant was less favourable than the respondent's offers of compromise, the respondent had not served relevant expert reports in his possession before making the offers and later introduced liability expert evidence which significantly changed the case the appellant had to meet at trial. Those circumstances constituted exceptional circumstances and justified a different costs order to avoid substantial injustice. The respondent was therefore not entitled to the favourable costs consequences under Pt 39A r 25(6), and the respondent was ordered to pay the appellant's costs at trial and on the appeal.

Jurisdiction
Australia
Judgment Date
15 February 2007
Procedural Posture
Costs Determination Following Appeal in Personal Injury Proceedings / Court of Appeal After Judgment Allowing Appeal; Costs Reserved and Determined on Written Submissions
Outcome
The respondent to pay the appellant's costs at trial and on the appeal.
Legal Topics
['offer of Compromise' 'consequences of Refusal to Accept Offer of Compromise' 'exceptional Case and Avoidance of Substantial Injustice' 'late Service of Expert Reports' 'contributory Negligence']
['civil Procedure' 'costs' 'personal Injury'] ['offer of Compromise' 'consequences of Refusal to Accept Offer of Compromise' 'exceptional Case and Avoidance of Substantial Injustice' 'late Service of Expert Reports' 'contributory Negligence']

Case Brief

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Procedural Posture

Costs Determination Following Appeal in Personal Injury Proceedings / Court of Appeal After Judgment Allowing Appeal; Costs Reserved and Determined on Written Submissions

Legal Issues

  1. 1 ['Whether the respondent was entitled to costs from the day after offers of compromise were made because the appellant obtained a judgment less favourable than the offers.' "Whether the failure to serve expert reports before the offers of compromise and the later significant change in the respondent's case constituted an exceptional case and justified a different costs order to avoid substantial injustice." 'Whether the respondent should recover costs of the appeal where no fresh offer of compromise was made for the appeal.']

Ratio Decidendi

The majority held that although the result obtained by the appellant was less favourable than the respondent's offers of compromise, the respondent had not served relevant expert reports in his possession before making the offers and later introduced liability expert evidence which significantly changed the case the appellant had to meet at trial. Those circumstances constituted exceptional circumstances and justified a different costs order to avoid substantial injustice. The respondent was therefore not entitled to the favourable costs consequences under Pt 39A r 25(6), and the respondent was ordered to pay the appellant's costs at trial and on the appeal.

Court Disposition

The respondent to pay the appellant's costs at trial and on the appeal.

Orders

  • ["The respondent pay the appellant's costs at trial and on the appeal."]