Hardy v Tweed Shire Council [1999] NSWCA 357

New South Wales Court of Appeal CITATION : Hardy v Tweed Shire Council [1999] NSWCA 357 FILE NUMBER(S) : CA 40120/99; 40121/99 HEARING DATE(S) : 16 August 1999 JUDGMENT DATE : 16 August 1999

PARTIES : Bridget Jean Hardy v Tweed Shire Council; Byron Maurice Hardy v Tweed Shire Council. JUDGMENT OF : Meagher JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 4038/97; 4039/97 LOWER COURT JUDICIAL OFFICER : Patten DCJ

Appellant: C. P. Locke COUNSEL : Respondent: E. Techara Second respondent: no appearance Appellant: David Velleley SOLICITORS : Respondent: halliday & Stainlay Second respondent: Henry Davis York. CATCHWORDS : Notice of Motion - appeal - costs awarded against plaintiffs in favour of cross-defendant. DECISION : Order 1 granted.; Claimants to pay opponents costs.

- 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA: 40120/99; 40121/99

MEAGHER JA

Monday, 16 August 1999

Bridget Jean HARDY v TWEED SHIRE COUNCIL Byron Maurice HARDY v TWEED SHIRE COUNCIL

JUDGMENT

1 MEAGHER JA: This is a somewhat difficult case. Two young plaintiffs, Mr Byron Hardy and Miss Bridget Hardy, being young children, sued the present occupant, the Tweed Shire Council, in damages for injuries received to them when the motor car in which they were passengers had an accident on a country road under the control of the opponent. The driver of the vehicle in which they were passengers was their mother, Mrs Kim Hardy. 2 The matter was heard before Patten DCJ for some days. His Honour gave a judgment which to some extent seems a little extraordinary. Each of the judgments was an order that the plaintiffs pay the defendant's costs. What is a little more extraordinary is that the plaintiffs were also ordered to pay the defendant's costs of the counter-claim between the defendant and Mrs Hardy. 3 The amount of costs involved is not precisely known. It is at the moment before an assessor. Counsel, whose arguments have been extremely useful, suggested that the sum involved may be as high as fifty thousand dollars. 4 It is unusual, I should have thought, that in the circumstances of this case, which have been outlined to me by Mr Locke, whose account has not been criticised by either of the other parties, would suggest a strong prima facie case for a verdict in favour of the two plaintiffs. It is also particularly unusual in that the costs order includes not only the costs as between the plaintiffs and defendant but also the costs as between the defendant and the cross-defendant. 5 In these circumstances, although with some hesitation, I will make order (1) as asked in the notice of motion of 2 July 1999, but limit it to the date on which the application for leave to appeal is dealt with by this Court. 6 I think the claimants should pay the opponents costs of this motion.