New South Wales Court of Appeal CITATION : OWNERS - STRATA PLAN 156 v GRAY [NO 2] [2004] NSWCA 338 HEARING DATE(S) : 13 August 2004 JUDGMENT DATE : 23 September 2004 JUDGMENT OF : Sheller JA; Gzell J DECISION : Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951. CATCHWORDS : COSTS of appeal LEGISLATION CITED : N/a CASES CITED : N/a PARTIES : Owners - Strata Plan 156 - Appellant Deborah Elizabeth Gray - Respondent FILE NUMBER(S) : CA 40944/03 COUNSEL : I G Harrison SC/K E Poulos - Appellant J E Maconachie QC/D C Morgan - Respondent SOLICITORS : A R Connolly & Co - Appellant Steve Masselos & Co - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 9895/00 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40944/03 DC 9895/00 SHELLER JA GZELL J Thursday, 23 September 2004 OWNERS OF STRATA PLAN 156 v GRAY (NO 2] Judgment 1 THE COURT: When handing down judgment on 3 September 2004 the Court reserved the questions of costs and restitution for further submission. No order for restitution is sought. 2 In its written submissions, the appellant seeks an order that the respondent pay its costs of the appeal. The Court allowed the appeal and reduced the amount of damages awarded by the trial Judge to the respondent by just over $110,000. The principal issue, which was resolved in the appellant's favour, was the amount awarded by the trial Judge for non-economic loss. The appellant submitted that there is no reason why the costs of the appeal should not follow the event. The cross-appeal related to the deduction from the amount awarded to the respondent for domestic assistance of 15 per cent for vicissitudes. At no time had the respondent raised with the trial Judge the inappropriateness of such a deduction when consideration was being given to the form of the orders at trial. 3 The respondent submitted that because the appellant was unsuccessful in its challenge to the award for future domestic assistance, future economic loss and future superannuation and the respondent successful on its cross-appeal an order should be made for costs in favour of the respondent or that each party should pay its or her costs of the appeal and the cross-appeal. 4 In our opinion, at the hearing of the appeal the argument for the most part was directed to the appeal. The appellant was successful in reducing the damages awarded against it significantly and should have its costs of the appeal. The respondent is entitled to a certificate under the Suitors' Fund Act 1951. The cross-appeal was not seriously argued. There should be no order for the costs of the cross-appeal which was filed by leave when the hearing of the appeal began. 5 The order of the Court will therefore be that the respondent pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act 1951. ********** Last Modified: 09/24/2004 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.