ROSS BROWN SALES PTY. LIMITED v SJOERD FABER [1996] NSWCA 456

ROSS BROWN SALES PTY. LIMITED v SJOERD FABER SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

SHELLER JA, GILES AJA and Simos AJA 25, 26 November, 6 December 1996

[1996] NSWCA 456

INDEMNITY COSTS — appeal against quantum abandoned prior to hearing of appeal but after grant of stay of proceedings — appellant ordered to pay costs of plaintiff on indemnity basis in particular circumstances of case.

Sheller JA. [No 2]

On 26 November 1996 the Court delivered judgment dismissing the appellant's appeal. The question of what order should be made about costs was left open but Mr Rayment QC, who appeared for the appellant, accepted that the dismissal of the appeal meant that his clients should pay the respondents" costs. Mr Glissan QC, who appeared for the first respondent, the plaintiff in the proceedings, applied for an order that the appellant pay the first respondent's costs on an indemnity basis: s 76 (1) (c) of the Supreme Court Act; Maitland Hospital v Fisher (1992) 27 NSWLR 721 at 724. The Court heard argument on this application.

The nature of the proceedings is set out in the judgment of Simos AJA on the appeal and it is not necessary to repeat this history. Hunter J found that for some four years following his return to work after the accident of 12 June 1987, the plaintiff continued working as a welder, without loss of time, for his employer, Pro-Krane Pty Limited, the first defendant and second respondent. On 25 November 1991 he contracted a particularly serious illness described as life threatening and diagnosed as inflammatory spondylo-arthritis. There was evidence that he was fit to return to light duties by May 1992. Hunter J observed however that he should not be engaged in employment requiring heavy lifting, defined as anything in excess of fifteen kilograms. While that limitation would not affect his capacity to work as a welder where lifting assistance was available as at Pro-Krane, it clearly would have significant limitations in general industrial work. Hunter J said: