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. FINNANE: I can't oppose that, your Honour. But it would only relate to the period after that. HANDLEY JA: Yes, that is so. Mr Garling has applied to vary the Court's order for costs. A notice of compromise was served on 9 March, in which the defendants offered to compromise on the basis that the verdict for the defendants should stand but that there should be no order as to costs. This offer on behalf of the defendants involved the giving up of the costs of the trial and the costs incurred to that date in the appeal and the summons for leave to appeal. Mr Finnane properly accepts that he cannot resist this order, and that concession was inevitable. I am asked whether the costs of the appeal were to be given up. SHELLER JA: No, the costs of the trial. Perhaps if we could see the letter. GARLING: Perhaps I'll give your Honours the offer. HANDLEY JA: Just read it out, I think. If there's any complications we'll look at it. GARLING: Offer to compromise the claim in the following manner. (1) Verdict for the first and second opponents, as they were described; (2) each party to pay their own costs. HANDLEY JA: The appeal would be dismissed on that basis. GARLING: Yes, your Honour. HANDLEY JA: The Court therefore varies the order for costs originally pronounced and substitutes an order that the claimant pay the opponent's costs on an indemnity basis from and after 9 March 1999. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.