Arian v Nguyen [2001] NSWCA 5

New South Wales Court of Appeal

CITATION : Arian v Nguyen [2001] NSWCA 5 FILE NUMBER(S) : CA 40809/98 HEARING DATE(S) : 01/02/01 JUDGMENT DATE : 14 February 2001

PARTIES : Mayman Arian v Yen Thi Ngoc Nguyen JUDGMENT OF : Foster AJA at 1; Ipp AJA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT DC 3543/97 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: K Rewell/M Cleary Respondent: J D Hislop QC/B G Smith SOLICITORS : Appellant: Dennis & Company Respondent: Curwood & Partners CATCHWORDS : PERSONAL INJURY - motor vehicle accident - appellant/plaintiff riding bicycle - recovered judgment for damages at $5,210.20 - appeal as to assessment of damages and costs - EVIDENCE - credibility and weight - issue as to whether appellant/plaintiff exaggerated symptoms - appellant/plaintiff testimony found unsatisfactory and without credit - inconsistencies in evidence - effect of appellant's lack of credibility on evidence of other witnesses - COSTS - depriving a successful party of costs - exercise of discretion to order successful party to pay unsuccessful party's costs - Pt 39A r 12 District Court Rules - whether appellant/plaintiff's action amounted to misconduct - offer of compromise by respondent/defendant less than judgment - Pt 39A r 25(6) District Court Rules - discussion of jurisdiction and discretion to award costs against a successful party. D Motor Accidents Act 1988 LEGISLATION CITED : Workers Compensation Act 1987 District Court Rules 1973 General Insurance Office v Bailey (1992) 27 NSWLR 304 Heuston v Yore Contractors Pty Limited (unreported, SC(NSW), 9 March 1992) Oshlack v Richmond River Council (1998) 193 CLR 72 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 Mannix v Loumbos [2000] NSWCA 32 Ottway v Jones [1955] 1 WLR 706 Scherer v Counting Instruments Limited [1986] 1 WLR 615 Trade Practices Commission v Nicholas Enterprises Pty ltd (1979) 28 ALR 201 Robinson v Australian Association of Social Workers Limited [2000] SASC 239 CASES CITED: Re Elgindata Limited (No 2) [1993] 1 All ER 232 Ashby v Marshall (unreported, SC(SA), 28 November 1991) Popovic v Murray (unreported, SC(Tas),15 March 1991) Huxley v West London Extension Railway Company (1899) 14 App Cas 26 Ritter v Godfrey (1920) 2 KB 47 Donald Campbell & Co v Pollak [1927] ACt 732 Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 Cretazzo v Lombardi (1975) 13 SASR 4 Adams v Kennedy & Ors [2001] NSWCA 7 Lee v Kennedy & Ors [2001] NSWCA 8 DECISION : Appeal in respect of the verdict in the sum of $5,210.20 is dismissed; The appeal in respect of the costs order is upheld and the order made by the trial judge in regard to costs is set aside; The respondent pay the appellant's costs of the first day of the trial, to be taxed, those costs not to include any item relating to the specialist medical practitioners whose reports were tendered in evidence; The appellant pay the respondent's costs in respect of the rest of the trial; The appellant pay 75 per cent of the respondent's costs of the appeal, to be taxed.