EVERINGHAM v GOVERNMENT INSURANCE OFFICE OF NSW [1995] NSWCA 143

EVERINGHAM v GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 13 April 1995, 13 April 1995

[1995] NSWCA 143

Motor vehicle accident — Damages — Pt39, r1A of District Court Rules — Costs

Sheller JA Ex tempore

The claimant, Dale Bradley Everingham, was the plaintiff and the opponent, Government Insurance Office, the defendant in two proceedings in the District Court to recover damages allegedly suffered by the claimant in two separate motor vehicle accidents.

In the first of those proceedings, which was commenced in 1986, the claimant was granted legal aid to date from 18 November 1986. In the second, which was commenced in 1990, the claimant was refused legal aid. By consent both matters were heard together before Judge Madgwick QC in December 1993.

The claimant succeeded in the second matter. In the first matter Judge Madgwick entered a verdict for the opponent without making specific reference to costs so that Pt39, rlA of the District Court Rules operated and costs followed the event of the action.

In the second matter in which the claimant was successful, his Honour gave judgment for the claimant and allowed him costs on the highest scale. The effect of what his Honour said was that the claimant was to have his costs of those proceedings.

On 4 November 1994, the claimant's cost were taxed in the matter in which he was successful. The opponent's costs in the other matter had not been taxed up to the end of 1994.

On 9 November 1994 the opponent filed a notice of motion in the District Court seeking orders:

1. that the claimant be restrained from enforcing judgment for payment and costs ordered to be paid in the amount taxed;

2. that interest not run on the order; and

3. that the costs to which the claimant was entitled pursuant to such taxation be offset against costs to which the opponent was entitled on taxation in the 1986 proceedings and that one certificate of taxation issue for the excess in favour of the party entitled thereto.