PALUMBO v IZMIRLIAN [1995] NSWCA 354

PALUMBO v IZMIRLIAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ and ROLFE AJA 7 June, 6 July 1995

[1995] NSWCA 354

Application to the Court of Appeal for indemnity costs by virtue of an offer of compromise made pursuant to Ptl9A R9(5) of the District Court rules, on the basis that judgment, as varied, by the Court of Appeal is no less favourable than the amount of the offer of compromise.

Not established that the Court should "otherwise order". Order for indemnity costs made.

Forbes Services Memorial Club Ltd v Hodge (Court of Appeal - 8 March 1995 - unreported) applied.

Gleeson CJ FURTHER JUDGMENT

[1] Iagree with the orders proposed by Rolfe AJA in his Further Judgment and with his reasons.

Rolfe AJA Judgment in this matter was delivered on 14 June 1995. The following orders were made:

1. Appeal allowed.

2. Judgment of McDevitt DCJ set aside.

3. In lieu thereof judgment for the plaintiff in the sum of $73,004.

4. The respondent pay the appellant's costs of the proceedings before McDevitt DCJ and of the appeal and as to the costs of the appeal have a certificate under the Suitors' Fund Act if he is otherwise entitled to it.

Upon the orders being announced Mr Lakeman of Counsel for the appellant sought a special order for costs on an indemnity basis arising from the making of an offer of compromise. It was inappropriate to consider that then and directions were given for the parties to furnish written submissions. There has been compliance with those directions and the detailed submissions make further oral submissions unnecessary. Several additional matters have been raised.

Firstly, the appellant has pointed out that an arithmetical error has been made in the calculation of non-economic loss. The amount included in the award of damages for this component was $37,000. No issue is taken with the base figures, but it has been submitted that an application of the formula laid down by the Motor Accidents Act produces a figure of $43,000, in lieu of the figure of $37,000. It is not necessary to go into the figures further because the respondent concedes that the statutory formula under s79 of that Act yields the figure of $43,000. Accordingly, the amount of the judgment should be increased from $73,004 to $79,004. The appellant submits the correction to the judgment should be made pursuant to Pt20 R10 and the submissions of the respondent raise no objection to this course.