FOTHERINGHAM v. FOTHERINGHAM (No. 2) [1999] NSWCA 21

Reported Decision : 46 NSWLR 194

New South Wales Court of Appeal CITATION : FOTHERINGHAM v. FOTHERINGHAM (No. 2) [1999] NSWCA 21 revised - 02/06/99 FILE NUMBER(S) : CA 40777/96 HEARING DATE(S) : Written Submissions only JUDGMENT DATE : 4 May 1999

PARTIES : Robert James Fotheringham v. Annette Fotheringham JUDGMENT OF : Spigelman CJ at 1; Mason P at 2; Powell JA at 3; Beazley JA at 31; Stein JA at 32

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : 4161/94 LOWER COURT JUDICIAL OFFICER : Master Macready

COUNSEL : M. B. Evans (Appellant) M. R. Errington (Respondent) SOLICITORS : Conditsis & Associates (Gosford) by their City Agents Tress Cocks & Maddox (Appellant) Taperell Rutledge (Gosford) by their City Agents Pike Pike & Fenwick (Respondent) CATCHWORDS : Appeal and New Trial - De Facto Relationship Act 1984 - Offer of compromise made by plaintiff - Order by Master in favour of plaintiff in amount in excess of offer - Order for costs on indemnity basis in favour of plaintiff - Appeal by defendant - Appeal upheld and order of Master reduced but not below amount of offer - Plainitff seeks order for costs of appeal on indemnity basis; Costs - Departing from general rule - Indemnity costs - Offer of compromise made by plaintiff before trial - Award at trial exceeds amount of offer - Order for indemnity costs of trial - Appeal by defendant - Appeal upheld and award reduced but not below amount of offer - Plaintiff seeks order for costs of appeal on an indemnity basis Supreme Court Act 1970 s.76 SCR Pt 22 rr 1A 3 Pt 52A rr 4 11 ACTS CITED : 22 33 Australian Consolidated Press Limited v. Ettingshausen ( Court of Appeal 13 October 1993 (unreported) Ettingshausen v. Australian Consolidated Press Limited ((1995) 38 NSWLR 404) Commercial Union Assurance Company of Australia v. Pelosi (No. 2) (Court of Appeal 27 February 1996 (unreported)) Ditton v. Whitton (Court of Appeal 5 September 1997 (unreported)) DECISION : Order that Respondent pay Appellant's costs of Appeal