BEYDOUN v CHILD and ORS [1996] NSWCA 47

BEYDOUN v CHILD and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and POWELL JJA, COLE J 26 April 1996, 26 April 1996

[1996] NSWCA 47

Costs — Offers of compromise — District Court — Acceptance of- Consequence of — Discretion of Court otherwise to order — Offers made during course of hearing — Offers accepted after conclusion of hearing but before Judgment — Whether discretion enlivened — Whether discretion validly exercised.

Powell JA These are appeals, by leave, against orders for costs, made originally on 13 March 1992, and confirmed on 8 April 1992, by Smyth DCJ when dealing with the costs of three sets of proceedings which had been brought by the present appellant against the owners of three motor vehicles which had been involved in motor accidents in which the appellant was injured.

The first proceeding was a proceeding concerning an incident which occurred in 1981 at a time when the appellant was seated in a stationary motor vehicle, and that motor vehicle was struck by a vehicle which was exiting a driveway on the opposite side of the road. The injury which the plaintiff sustained appears to have been a minor whiplash injury, the amount of damages which was ultimately assessed in the sum of $6,500.

The second incident occurred in 1982 but the appeal papers do not disclose the circumstances in which the appellant came to be injured. Be that as it may, it would seem that his injuries were not extensive, for, ultimately, the appellant accepted in respect of that claim an offer made pursuant to the provisions of Pt19A of the District Court Rules for a sum of $21,000 plus out-of-pockets.

The third incident occurred in 1987. Again, the circumstances in which it occurred are not revealed by the appeal papers, but it seems clear enough that the appellant's injuries in that incident were rather more substantial, for, ultimately, he accepted an offer of $125,000 plus out-of-pockets in respect of that claim The three actions were heard together before Smyth DCJ, the hearing occupying some 33 days However, it is clear that, of that 33 days, only a comparatively small amount of time was directed to the claims based on the incidents in 1981 and 1982, the greater part of the 33 days hearing time being devoted to the claim based on the third incident.