CSR LIMITED v ELLIOTT; GEORGE WARD PTY LIMITED v UBERO PTY LIMITED [NO 2] [1995] NSWCA 110

CSR LIMITED vy ELLIOTT; GEORGE WARD PTY LIMITED v UBERO PTY LIMITED [NO 2]

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, PRIESTLEY JA and HANDLEY JA 8 August 1994, 21 March 1995

[1995] NSWCA 110

COSTS — assignment of appropriate party to pay in multi-party appeal and cross-appeal — application for indemnity costs — offer to accept $100,000 of $103,665 judgment — whether offer of compromise — omission of workers' compensation — held: No indemnity costs ordered.

Kirby P. I agree with Priestley JA.

Priestley JA. The court published reasons and pronounced judgments and orders in these matters on 23 June 1994.

Order 7 suspended the operation of certain of the judgments and orders for fourteen days for the reasons then given. Liberty to apply within fourteen days was reserved.

Subsequently, one aspect only of the court's orders, concerning one matter of costs in the first of the two abovenamed appeals, became the subject of an application for clarification. This was a tactful way of describing the application, because although the court, in disposing of the appeals, made orders for costs of the trial before Davidson DCJ, no orders were made for the costs of Mrs Elliott (the plaintiff) as respondent to the appeal.

When the matter came before the court for the making of the necessary order, it was common ground between all parties that Mrs Elliott asrespondent should have her costs of the appeal. There was however no agreement on who should pay her costs or whether indemnity costs should be ordered.

CSR instituted the appeal, which, as explained in the reasons already published, was, on the substantive grounds of appeal, bound to fail in this court and bound also to fail in the High Court unless the High Court could be persuaded to overturn a line of its own authority which there is no blindingly obvious reason for overturning.