State of NSW v Hatzipetrou [1999] NSWCA 178

New South Wales Court of Appeal CITATION : State of NSW v Hatzipetrou [1999] NSWCA 178 revised - 29/06/99 FILE NUMBER(S) : CA 40184/98 HEARING DATE(S) : 02/06/99 JUDGMENT DATE : 25 June 1999

PARTIES : State of New South Wales Dussil Hatzipetrou JUDGMENT OF : Giles JA at 1; Fitzgerald JA at 2; Rolfe J at 4

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 6554/97 LOWER COURT JUDICIAL OFFICER : Sidis DCJ

COUNSEL : Appellant - Mr D. Letcher QC/Mr G. Giagios Respondent - Mr S.L. Walmsley SC/Mr M. Whitehead SOLICITORS : Appellant - Mr I.V. Knight, State Crown Solicitor Respondent - Turner Freeman CATCHWORDS : District Court Appeal:- Damages: past economic loss and loss of future earning capacity - no error of principle in calculating the amounts.; Indemnity Costs: Offer of Compromise made by the plaintiff some four months before the trial and not accepted - judgment for an amount in excess of the offer - application for indemnity costs refused by trial Judge on the ground that as further material was furnished after the making of the offer the defendant did not have a sufficient opportunity to assess it - held that on the particular facts of this case the material furnished after the Offer of Compromise was made was merely confirmatory of the case the plaintiff had always made, so that the defendant had ample opportunity to assess the offer and that, accordingly, the trial Judge's exercise of discretion had miscarried. Held further that costs of the appeal and the cross-appeal should be on an indemnity basis. CASES CITED: Marsland v Andjelic (No 2) (1993) 32 NSWLR 649; Morgan v Johnson (1998) 44 NSWLR 578; Houatchanthara v Bednareczyk (Court of Appeal - 14 October 1996 - unreported); Melville v Tadros (Court of Appeal - 21 May 1999 - unreported); House v The King (1936) 55 CLR 499; Ettingshausen v Australian Consolidated Press Limited (1995) 38 NSWLR 404 DECISION : Defendant's appeal on damages dismissed with costs, such costs to be assessed on an indemnity basis from the date of the Offer of Compromise.; Plaintiff's application for leave to appeal on the question of costs allowed, appeal on that question allowed with costs on the same basis.