Commonwealth of Australia v Elliott (No 2) [2004] NSWCA 403

New South Wales Court of Appeal

CITATION : Commonwealth of Australia v Elliott (No 2) [2004] NSWCA 403 HEARING DATE(S) : (On written submissions) JUDGMENT DATE : 9 November 2004

JUDGMENT OF : Giles JA; Hodgson JA; Tobias JA DECISION : Note that order 3 made on 8 October 2004 did not result in a substituted judgment. Order that in lieu of the judgment for the plaintiff against the defendant in the sum of $1,448,271.67 there be judgment for the plaintiff against the defendant in the sum of $1,031,685.80, such judgment taking effect on 26 November 2003.

CATCHWORDS : Recalculation of damages following increase in discount for contingencies - no question of principle. ND CASES CITED : Brown v Falzari [2001] Tas SC 46; Goode v Thompson [2002] QCA 138. PARTIES : Commonwealth of Australia - Appellant Craig Andrew Elliott - Respondent FILE NUMBER(S) : CA 41195/03 COUNSEL : R E Williams QC & B Skinner - Appellant H Shore SC - Respondent SOLICITORS : Australian Government Solicitor, Sydney - Appellant Thomas & Company, Sydney - Respondent

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 20467/99 FILE NUMBER(S) : LOWER COURT Foster AJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41195/03 SC 20467/99

GILES JA HODGSON JA TOBIAS JA

Tuesday 9 November 2004 COMMONWEALTH OF AUSTRALIA v ELLIOTT (No 2) Judgment 1 THE COURT: Judgment in the appeal was given on 8 October 2004. It was necessary that the damages be recalculated, and the orders provided for agreement and liberty to apply in the event of disagreement. There was substantial agreement, but disagreement on two matters, one of which was in truth not a matter of recalculation.