NSW Caselaw
Reported Decision : 67 NSWLR 299
New South Wales Court of Appeal
CITATION: Port Stephens Council v Theodorakakis (NO 2) [2006] NSWCA 143 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 23/03/2006
JUDGMENT DATE: 5 June 2006
JUDGMENT OF: Giles JA at 1; Ipp JA at 17; Bryson JA at 22
DECISION: 1. Order that the claimant pay the opponent's costs of the claimant's Summons for leave to appeal; 2. Order that each party pay its or her own costs of the opponent's Summons for leave to appeal.
CATCHWORDS: COSTS - - LEGAL PROFESSION - Cap on costs recoverable in connection with personal injury damages claims - cap applies in appeal unless Court of Appeal makes excluding order - unsuccessful defendant applied for leave to appeal and failed - cap of $13,587.23 on damages probably already exceeded after 3-day hearing in District Court - held by majority (Bryson JA dissenting) it had not been shown that the application for leave to appeal was not reasonably necessary for advancement of claimant's case. Note that this application was made under LPAct 1987 ss.198D and 198G, cf. LPAct 2004 ss 338 and 341 but see now LPAct 2004 s.338A.
Civil Liability Act 2002 s.42 LEGISLATION CITED: Legal Profession Act 1987 Pt.11 Div.5B ss.198D & 198G Legal Profession Act 2004 ss. 341, 338 & 737 and Schd.9 cl.18(1).
CASES CITED: Newcastle City Council v Travis McShane (No.3) [2005] NSWCA 437 Wollongong City Council v Nyboer [2005] NSWCA 394
PARTIES: Claimant – Port Stephens Council Opponent – Maria Theodorakakis
FILE NUMBER(S): CA 40422/2005
COUNSEL: Claimant – Mr P.R. Garling SC & Mr P. Cummings Opponent – Mr M.R. Aldridge SC & Ms E. Welsh
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