RHEE v MASON [1996] NSWCA 449

RHEE v MASON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA and Simos AJA 30 August 1996, 30 August 1996

[1996] NSWCA 449

COSTS — indemnity costs — whether appropriate to award on late abandonment of appeal — Huntsman Chemical Co Aust Ltd v International Pools Aust Ltd (1995) 36 NSWLR 242 applied.

Sheller JA This appeal was discontinued by the appellant yesterday. It is perhaps a little unfortunate that that decision was made so late. Before the Court is a notice of motion in which two orders are sought. The first of those orders is consented to. Accordingly, the Court will order that the judgment given by his Honour Acting Judge Gallen on 2 April 1996 be amended by substituting the amount of $48,379.40 for the amount of $47,429.40. The second order sought is that the appellant pay the respondent's costs of the appeal on an indemnity basis.

In support of this order, Mr Leslie QC relied upon what was said by Kirby P in New South Wales Medical Defence Union v Crawford 31 NSWLR 469 at 494. Essentially indemnity costs have been reserved to clearly exceptional cases such as those in which the conduct of the losing party has involved some unmeritorious, deliberate or high-handed conduct thought by the Court to warrant an order for costs over and above the ordinary. Mr Leslie submitted that the present was such a case. In particular, he referred to the fact that the appellant had two appeals, one appeal from an arbitrary award made on 3 October 1995 to the District Court and then the appeal which was discontinued yesterday.

It appears that the verdict of the District Court was less than the amount awarded by the arbitrator so that in that sense the appellant's appeal from the award was justified. However, the nub of Mr Leslie's complaint is the late time at which this appeal was discontinued.