Theunis VAN EEDEN v Phillip Andrew HENRY; Phillip Andrew HENRY v Theunis VAN EEDEN [2005] NSWCA 14

Reported Decision : 62 NSWLR 301

New South Wales Court of Appeal

CITATION: Theunis VAN EEDEN v Phillip Andrew HENRY; Phillip Andrew HENRY v Theunis VAN EEDEN [2005] NSWCA 14

HEARING DATE(S): 13 December 2004

JUDGMENT DATE: 11 February 2005

JUDGMENT OF: Spigelman CJ at 1; Sheller JA at 69; McColl JA at 70

DECISION: 1. Appeals allowed in part; 2. That part of the order of Karpin DCJ that "the Plaintiff be ordered to pay the Defendant's costs" be varied by including the words "half of" before the words "the Defendant's costs"; 3. Otherwise appeals dismissed; 4. The Appellant in each appeal to pay one half of the Respondent's costs

CATCHWORDS: NEGLIGENCE - Motor vehicle collision - No first hand evidence - Proof on the balance of probabilities - Claim and counter-claim dismissed - APPEAL - Whether trial judge drew correct inferences from primary evidence - Trial judge inferences upheld - COSTS - Discretion to award - Claim and counter claim - Each party separately represented as plaintiff and defendant - Courts should only award costs where justice requires double representation - Parties should seek leave to be separately represented - Courts should exercise discretion to award costs to create an incentive to ensure only one set of legal representatives appointed to represent an individual party - In the normal case a successful Plaintiff should receive one half of his or her costs and a successful defendant should receive one half of his or her costs

Motor Accidents Act 1988 LEGISLATION CITED: Motor Accident Insurance Act 1994 (Qld) Supreme Court Rules 1970: Part 1 Rule 3

Baker v Market Harborough Industrial Cooperative Society Ltd [1953] 1 WLR 1472 Hering v Martin [2004] QCA 70; (2004) 40 MVR 366 Hinchcliffe v Carroll [1969] VR 164 CASES CITED: Luxton v Vines (1952) 85 CLR 352 Maher-Smith v Gaw [1969] VR 371 Nesterczuk v Mortimore (1965) 115 CLR 140 Wheatland v Dickson (1995) 22 MVR 431