Tan v Mitchell [No 2] [2006] NSWCA 228

New South Wales Court of Appeal

CITATION: Tan v Mitchell [No 2] [2006] NSWCA 228

HEARING DATE(S): On written submissions

JUDGMENT DATE: 23 August 2006

JUDGMENT OF: Mason P at 1; Ipp JA at 2; Bryson JA at 13

DECISION: The orders made in CA 40417/05 on 12 July 2006 be varied as follows: (a) The order in respect of costs made by the trial judge in action DC 11420/01 be set aside and, in lieu thereof, the defendant pay the plaintiff's costs of the trial in the District Court on a party/party basis. (b) Mr Mitchell to pay 80% of Ms Tan's costs of the appeal.

PARTIES: Joy Al-Ling Tan (Appellant) Justin Lee Mitchell (Respondent)

FILE NUMBER(S): CA 40417/05

CA 40417/05 COUNSEL: L M Morris QC/D M Wilson (Appellant) P Maiden SC/R Foord (Respondent)

CA 40417/05 SOLICITORS: Abbott Tout (Appellant) Mark Brown & Associates (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 11420/01

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 28/04/05

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40417/05 DC 11420/01

MASON P IPP JA BRYSON JA

Wednesday 23 August 2006 JOY AL-LING TAN v JUSTIN LEE MITCHELL (NO 2) Judgment (On Costs) 1 MASON P: I agree with Ipp JA. 2 IPP JA: By reasons delivered on 12 July 2006 (Tan v Mitchell [2006] NSWCA 178) this Court dealt with two appeals, (CA 40417/05 and CA 40409/05). In relation to CA 40417/05 Ms Tan was the appellant and Mr Mitchell was the respondent. In that appeal, the Court ordered that the total amount of Mr Mitchell's damages as assessed by the trial judge (namely, $929,928.60), be reduced by $136,900 to $793,029. The verdict and judgment in favour of Mr Mitchell granted by the trial judge were set aside and in lieu thereof a verdict and judgment in Mr Mitchell's favour in the sum of $793,029 were ordered. 3 As part of the orders handed down on 12 July 2006, the Court ordered that Ms Tan should pay the costs of the appeal of CA 40417/05. This order was a slip and was made in error. The intention was to order that Mr Mitchell should pay the costs of the appeal in CA 40417/05. Immediately after the judgment had been delivered, Mr Wilson, for Ms Tan, sought liberty to apply in regard to costs and that order was granted. Written submissions were directed. 4 After Mr Wilson filed submissions on behalf of Ms Tan, the Court realised that an error had been made when Ms Tan was ordered to pay the costs of the appeal in CA 40417/05. Thereupon, on 26 July 2006, I held a directions hearing in chambers and Mr Wilson and Mr Foord, counsel for Mr Mitchell, appeared. I informed them of the error and that the Court had intended to order that Mr Mitchell pay the costs of the appeal. Both counsel were given leave to file written submissions in the light of the information that I gave them. These submissions have been filed. 5 Mr Wilson, on behalf of Ms Tan, submitted that Ms Tan was the successful party in the appeal and the usual rule should apply. He submitted that Mr Mitchell should pay the costs of the appeal. 6 Mr Foord, for Mr Mitchell, submitted that Ms Tan's appeal was only partially successful. Her notice of appeal challenged both the finding that she was liable in negligence to Mr Mitchell and the trial judge's assessment of damages. The written submissions filed on Ms Tan's behalf canvassed liability as well as damages. In oral submissions, Mr Morris QC, senior counsel for Ms Tan, made some general observations about liability (although by far the major part of his submissions were directed to damages). 7 Mr Foord drew attention to Ms Tan's failure in respect of liability and pointed out that Ms Tan had succeeded only in respect of certain issues in relation to damages and had failed in regard to others. Mr Foord submitted further that certain offers of compromise that Ms Tan had made prior to the appeal should be taken into account. 8 In my view the offers of compromise to which Mr Foord referred had no relevant effect on the costs of the appeal. Mr Foord submitted that the offers showed that "the respondent was prepared to knock $50,000 off his damages and pay 50% of his own costs of the appeal". Offers to reduce the damages by $50,000, when at trial the damages were reduced by far more, namely, $136,900, are irrelevant to the costs order that should be made. 9 I would however give some recognition to the fact that Ms Tan was unsuccessful on the liability issue, albeit that the appeal focused substantially on damages. 10 In my view justice would be done were Mr Mitchell to be ordered to pay 80% of Ms Tan's costs of the appeal. 11 It was common ground that the indemnity costs order made by the trial judge should be set aside and that this Court should order, in lieu thereof, "the defendant pay the plaintiff's costs on a party/party basis". 12 Accordingly, I propose that the orders made in CA 40417/05 on 12 July 2006 be varied as follows: