CONNOR v HATGIS (NO 2) [1995] NSWCA 92

CONNOR v HATGIS (NO 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and POWELL JJA 4 May 1995, 7 December 1995. [1995] NSWCA 92

COSTS — successful appeal results in doubling of allowance for past and future economic loss appellant offers to take sum $4,000 less than amount ordered on appeal — held: (by maj): No special circumstances to deprive appellant of indemnity costs following offer — indemnity costs ordered after offer.

Kirby P and Priestley JA The orders made upholding this appeal did not includecosts orders for either the trial or the appeal. In regard to these the court asked the parties to file written submissions which was duly done.

Trial costs. The written submissions agree that the proper order for the costs of the trial is that the respondent (defendant at the trial) pay the appellant's (defendant's) costs of the trial on a party and party basis.

Accordingly we would favour making that order.

Appeal costs. In the respondent's written submissions it is conceded that prima facie the order sought by the appellant for costs of the appeal is proper. That order would be that the respondent pay the appellant's costs until and including 13 January 1995 on a party and party basis and thereafter on an indemnity basis.

The respondent however then argues that there are special circumstances taking the case out of what has become the ordinary, prima facie position.

After considering the respondent's submission we have come to the conclusion that there is no sufficient reason in this case for departing from the ordinary position.

We therefore favour the orders that the respondent pay the appellant's costs of the appeal on a party and party basis until and including 13 January 1995 and thereafter on an indemnity basis.

Since writing the above we have read Powell JA's reasons for coming to a different conclusion. There is no difference between us on the underlying facts. The difference lies in our opinion that in the circumstances of the present case the purpose of SCR Pt52 R17 is best served by not ordering otherwise than as it prima facie contemplates.