TATLI v CHRISTIANSEN [1988] NSWCA 154

TATLI v CHRISTIANSEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 28 March 1988

[1988] NSWCA 154

COSTS — matter remitted by High Court — appeal to High Court from Court of Appeal allowed — judgment sum reduced below award at trial — normal rule as to costs — separate issues argued on appeal in Court of Appeal — proper approach to retrospective determination of costs orders that would have been made, allowing for re-determination of one issue by High Court — reversal of approach to discount of allowance for future economic loss — Todorovic & Anor v Waller (1981) 150 CLR 402 applied by High Court — held: partly successful appellant to Court of Appeal should have half only of the costs of the appeal and cross-appeal. Supreme Court Act 1970, s46. Suitors Fund Act 1951, s6.

ORDERS 1. That the opponent pay half of the costs of the claimants of the appeal and cross-appeal; 2. That the opponent have a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal to this Court and the costs of the appeal the High court of Australia; and 3. That the claimants, having succeeded in this motion, have the costs of the motion.

Kirby P This motion is a further illustration of the fact that few issues so agitate the parties to litigation as those concerning the disposition of costs.

The matter that is before me now is the final stage in litigation which began with an accident suffered by the opponent on 6 November 1974. This accident led to litigation which came before Larkins J and was determined by judgment on 2 September 1980. His Honour entered judgment in favour of the opponent in the sum of $250,923.

The claimant appeal led to this Court. The opponent eventually filed a cross-appeal. This was handed up only on the return of the appeal. However it was dealt with on 3 June 1981 by the Court, comprising Moffitt P, Hutley and Glass JJA. In the result, the Court dismissed the claimant's appeal, allowed the opponent's cross-appeal with costs and substituted for the judgment entered by Larkins J, judgment in the sum of $317,843 to take effect from the date of the original judgment.