Agritis v Canterbury Muncipal Council [1999] NSWCA 148

New South Wales Court of Appeal CITATION : Agritis v Canterbury Muncipal Council [1999] NSWCA 148 FILE NUMBER(S) : CA 40567/98 HEARING DATE(S) : 17 May 1999 JUDGMENT DATE : 17 May 1999

DESPINA AGRITIS PARTIES : v CANTERBURY MUNICIPAL COUNCIL & ANOR JUDGMENT OF : Handley JA at 1; Sheller JA at 13; Fitzgerald JA at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 1749/97 LOWER COURT JUDICIAL OFFICER : Johnstone ADCJ

COUNSEL : M J Finnane QC/J O Anderson (Appellant) P R Garling SC/W M Fitzsimmons (Respondent) SOLICITORS : Martin Bell & Co (Appellant) Hunt and Hunt (Respondent) CATCHWORDS : NEGLIGENCE - PERSONAL INJURY - APPLICATION FOR LEAVE TO APPEAL - WHETHER TRIAL JUDGE'S FINDINGS OF FACT COULD BE DISTURBED DECISION : Dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40567/98 1749/97 HANDLEY JA SHELLER JA FITZGERALD JA

Monday 17 May 1999

DESPINA AGRITIS v CANTERBURY MUNICIPAL COUNCIL

JUDGMENT

HANDLEY JA: This is an application for leave to appeal brought on behalf of a plaintiff who slipped and fell on a grassy slope at Campbell Oval, Canterbury Park, on 10 April 1994. Mr Finnane has properly conceded that unless the claimant is able to disturb the Judge's findings of fact, leave should be refused. He has said everything that could possibly be said in support of the challenge to those findings but the Court is satisfied that there is no proper basis on which it could intervene and disturb those findings. In these circumstances both the summons for leave to appeal and the incompetent appeal should be dismissed with costs. GARLING: If the Court pleases. Could I make an application for costs on an indemnity basis, your Honours. On 9 March 1999 in these proceedings my clients made an offer to compromise the claim, on the basis of a verdict in my client's favour and each party pay their own costs. That was not accepted. HANDLEY JA: So you gave up costs of the trial and the costs of the appeal so far incurred? GARLING: Yes. HANDLEY JA: Yes, Mr Finnane? GARLING: As of 9 March, your Honour. HANDLEY JA: As at 9 March, yes. FITZGERALD JA: The indemnity costs application only relates to the period after that, is that the position? GARLING: Yes, your Honour.