STATE RAIL AUTHORITY OF NSW v CHARTAS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, HANDLEY JA and CoLe JA 10 May 1996 [1996] NSWCA 498 Priestley JA. The appeal before the Court is one which, when commenced, involved five explicit grounds of appeal. When the matter came on for hearing today, the appellant abandoned four of the five explicit grounds and also abandoned a sixth and catch all ground. The only ground of appeal remaining was that directed towards the interest figure of $25,000 which had been allowed as part of the judgment sum pursuant to s 73 of the Motor Accidents Act. As a result of the decision in Andjelic v Stuart Marslan, by his Tutor The Protective Commissioner of NSW (High Court, 17 April 1996) it became common ground between the parties that the $25,000 figure had to be adjusted. The parties were able to agree that $7975 would have to be deducted from the judgment amount. Actually, to be more precise, the respondent (who had been the plaintiff at the hearing) agreed that that figure was the excess over what should have been calculated according to the principles which the High Court laid down in Marslan. Counsel for the respondent did not accept that it necessarily followed that that amount had to be deducted from thejudgment sum. However, although he did not concede that, it was pretty obvious to all concerned that the Court would be likely to allow the appeal in order to set aside the judgment below and enter a new judgment which would have deducted from it that figure. Counsel for the respondent submitted an appropriate order, in the circumstances, would be that the Court should substitute a judgment of $107,827 to take effect as at 20 April 1994, the date of the original judgment, leaving the original order for costs undisturbed and should order the appellant to pay the costs of the appeal. The reason advanced for this was that until either yesterday or today, so far as the respondent was concerned, the appeal was one which may have gone ahead on all five of the explicit grounds. The respondent was therefore justified in preparing for appeal on that basis. In the event the appellant has succeeded on one ground only, which involved a comparatively small proportion of the total judgment amount. Bearing in mind the way in which the argument developed and the other grounds of appeal were abandoned, the respondent said it was appropriate that the appellant should pay his costs of the appeal. For the appellant it was not conceded that this order should be made. However, it is difficult to see any tenable basis of opposition to the order and the Court is of the view that the order suggested by counsel for the respondent should be made. Formally the orders are: The appeal be upheld, judgment below set aside; in lieu of that judgment, judgment in the sum of $107,827 and costs to be entered to take effect as at 20 April 1994. The appellant is to pay the respondent's costs of the appeal. Orders accordingly.