Berryman v Joslyn; Wentworth Shire Council v Joslyn (2) [2004] NSWCA 239

New South Wales Court of Appeal

CITATION : Berryman v Joslyn; Wentworth Shire Council v Joslyn (2) [2004] NSWCA 239 HEARING DATE(S) : On papers JUDGMENT DATE : 16 July 2004

JUDGMENT OF : Mason P at 1; Beazley JA at 2; Tobias JA at 3 DECISION : CA 40888 of 1999; (a) Appeal dismissed; (b) The appellant to pay the respondents' costs of the appeal; (c) Cross appeal by the first respondent allowed; (d) Vary the orders made by Boyd-Boland A-DCJ on 5 November 1999 by; (i) substituting the sum of $798,034.52 for the sum of $1,496,314.77 in respect of the appellant's claim against the first respondent; (ii) substituting the sum of $79,803.45 for the sum of $149,631.47 in respect of the first respondent's cross-claim against the second respondent; (e) The appellant to repay to the first respondent the sum of $698,280.10 paid to him pursuant to the orders of Boyd-Boland A-DCJ made on 5 November 1999 together with interest thereon from the date of payment to the date of repayment at the rate prescribed pursuant to Pt 40 r 7(2) of Schedule J of the Supreme Court Rules 1970; (f) The appellant to pay the first respondent's costs of her cross-appeal but to have a certificate under the Suitors' Fund Act 1951 with respect to those costs if otherwise entitled thereto; CA 40942 of 1999; (a) Appeal dismissed; (b) The appellant to pay the second respondent's costs of so much of the appeal as related to the issue concerning the appellant's liability to the second respondent; (c) The second respondent to pay the costs of the appellant and the first respondent with respect to the issue of contributory negligence but, with respect to such costs, to have a certificate under the Suitors' Fund Act 1951, if otherwise entitled thereto.

CATCHWORDS : COSTS - contributory negligence - first appeal reversed by High Court - party successful on remitted hearing re contributory negligence - ultimate liability reduced - determination of costs in first and remitted hearing Motor Accidents Act 1988 LEGISLATION CITED : Supreme Court Rules 1970 Suitors' Fund Act 1951 CASES CITED : No cases cited Allan Troy Berryman PARTIES : Sally Inch Joslyn Wentworth Shire Council FILE NUMBER(S) : CA 40888/99; 40942/99 A: M L Williams SC / K Pryde COUNSEL : 1 R: B Toomey QC / G Charteris 2 R: P Garling SC / J Morris A: Carroll & O'Dea, Sydney SOLICITORS : 1R: McMahons, Sydney 2R: Phillips Fox, Sydney