Cleere v. Matic Service Pty. Ltd. [No. 2] [2005] NSWCA 176

New South Wales Court of Appeal

CITATION: Cleere v. Matic Service Pty. Ltd. [No. 2] [2005] NSWCA 176

HEARING DATE(S): on papers

JUDGMENT DATE: 24 May 2005

JUDGMENT OF: Beazley JA; Hodgson JA; Barrett J

DECISION: The respondent to pay 80% of the appellant's costs of the appeal assessed on a party/party basis.; The respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.; The parties are directed to bring in Short Minutes of Order in accordance with these reasons and those of the Court given on 10 December 2004.

CATCHWORDS: APPEAL - indemnity costs - offer of compromise made by defendant at trial pursuant to Pt 19A District Court Rules - court's discretion as to costs - s.76 Supreme Court Act - COSTS - appellant ultimately successful on appeal but unsuccessful on issue of contributory negligence - whether appellant entitled to entirety of their costs

District Court Rules 1973 (NSW) LEGISLATION CITED: Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW)

Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404 Moore v Woodforth (No.2) [2003] NSWCA 46 CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72 South Sydney Council v Morris (No.3) [2001] NSWCA 200 South Sydney Council v Walsh (No.2) [2003] NSWCA 111

Michael Cleere - Appellant PARTIES: Matic Service Pty. Limited - Respondent

FILE NUMBER(S): CA CA 41102/2003

A.J. Lidden/Ms E Welsh - Appellant COUNSEL: D.G. Nock SC - Respondent

Bryden's Law Office - Appellant SOLICITORS: Vandervords - Respondent