THE NOMINAL DEFENDANT v GARDIKIOTIS [1994] NSWCA 236

THE NOMINAL DEFENDANT v GARDIKIOTIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and SHELLER JJA 22-24 February 1994, 23 June 1994 [1994] NSWCA 236

COSTS — OFFER OF COMPROMISE — UNREASONABLE — Pt22 AND Pt52, R17 SUPREME COURT RULES — INDEMNITY COSTS.

FACTS:

(1) Questions of costs of the appeal, given that the defendant won an enhanced verdict.

HELD:

(1) Pt22 and Pt52, rl7 apply to this case, and the inadequate offer of compromise therefore entitles the respondent to costs on an indemnity basis.

Priestley JA I agree with Meagher JA.

Meagher JA In this matter the Court delivered judgment on 19 May 1994. It made all the orders it thought appropriate except as to costs. We have now heard argument on the question of costs. The respondent on 11 June 1993 made an offer of compromise to accept the amount awarded by Garling DCJ. In the event she has proceeded to win a considerably enhanced verdict. The provisions of the Supreme Court Rules, Pt22 and Pt52, rl7 apply to this case. That, perhaps unlikely, result has been decided by this Court in Maitland Hospital v Fisher (No 2) (1992) 27NSWLR 721, which the appellant does not wish to challenge. Therefore the respondent is prima facie entitled to costs on an indemnity basis after 11 June 1993. The appellant has submitted that the prima facie rule should not apply because the appellant's behaviour in refusing to settle was "reasonable" in that it

relied on the advice of Dr Vanderfield that it was a medical impossibility for trauma to accelerate MS. We have found that such a view was both uninformed and erroneous. For the appellant to cling obdurately to it when it should have known better is hardly reasonable.

The following additional orders should be made:

5. Order the appellant to pay the cross-appellant the costs of the cross-appeal, but to have a certificate under the Suitor's Fund Act, 1951.