ROGERS v WENTWORTH [1995] NSWCA 396

ROGERS v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY JJA and BROWNIE AJA 5-6 October 1994, 5 May 1995

[1995] NSWCA 396

JUDGMENT FOR $3,360 IN SUPREME COURT

WHETHER PLAINTIFF ENTITLED TO MORE THAN HALF COSTS.

Following a trial in the Supreme Court in which the plaintiff sued her former husband for assault and battery the jury returned a verdict for the plaintiff for $2,000. The proceedings were commenced in 1982. The trial Judge awarded pre-judgment interest of $680 and entered judgment for $2860. Under SCR Pt51 R24(2)(c) this judgment carried no prima facie entitlement to costs unless the Court in the exercise of its discretion under R24(2)(c)(i) so ordered. The trial Judge made such an order which entitled her to half her costs but under R24(4) he declined to order that she receive any greater proportion. The plaintiff appealed against the award for prejudgment interest, and against the refusal of the trial Judge to make a more favourable order as to costs. The appeal in respect of pre-judgment interest was allowed, and the judgment was increased to $3360. Under R24(3)(c)(i) this judgment carried a prima facie entitlement to half costs. The appellant sought a more favourable order pursuant to R24(4). Held (by majority). No order should be made under R24(4) entitling the plaintiff to a greater proportion of her costs.

The plaintiff had reasonable grounds for expecting to recover a greater amount. However the judgment was substantially below the upper limit of $20,000 on the jurisdiction of the District Court which applied when the proceedings were commenced and there were no special factors which made that Court an inappropriate forum for the determination of the proceedings.

Priestley JA The circumstances of this appeal to date are set out in the reasons of Brownie AJA, in which he deals with the outstanding issues. Except as to the question of the appropriate costs order in the proceedings heard by Sully J, I agree with the opinions arrived at by Brownie AJA.