New South Wales Court of Appeal CITATION: Sheather v Country Energy (No.2) [2007] NSWCA 280 HEARING DATE(S): Matter dealt with on written submissions in Chambers JUDGMENT DATE: 12 October 2007 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 1; Tobias JA at 1 DECISION: The following additional order is made: 5. Mr. Sheather's costs of the proceedings (but not of the appeal) as from 1 May 2004 to be assessed on an indemnity basis. CATCHWORDS: COSTS - Appeal - Offer of compromise below not accepted - No offer in relation to appeal - Indemnity costs granted for the proceedings, not the appeal. CASES CITED: Singh v. Harika (No.2) [2005] NSWCA 212 PARTIES: Louis Sheather - appellant Country Energy - respondent FILE NUMBER(S): CA 40455/06 SOLICITORS: Baker Deane & Nutt, Queanbeyan for appellant Phillips Fox, Sydney for respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1739/06 (Sydney); DC 41/03 (Queanbeyan) LOWER COURT JUDICIAL OFFICER: Walmsley DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40455/06 HODGSON JA IPP JA TOBIAS JA Friday 12 October 2007 SHEATHER V. COUNTRY ENERGY (NO.2) Judgment 1 THE COURT: On 24 July 2007, the Court of Appeal gave a decision in which it allowed Mr. Sheather's appeal and gave verdict and judgment in his favour for $160,250.00 plus interest at District Court rates from 20 February 1999. The Court ordered that Country Energy pay Mr. Sheather's costs of the proceedings and of the appeal. 2 Pursuant to a direction given on 24 July 2007, Mr. Sheather has applied for an order that these costs should be assessed on an indemnity basis as from 1 May 2004. The basis of this application is an offer of compromise dated 27 April 2004, whereby Mr. Sheather offered to compromise his claim on terms that he have judgment for $145,000.00 and that Country Energy pay his costs. 3 In our opinion, Mr. Sheather is entitled to an order that the costs of the proceedings in the District Court be on an indemnity basis: cf. Uniform Civil Procedure Rules, Pt.42 r.14. 4 However, it does not follow that he is entitled to the costs of the appeal on that basis. There was no further of compromise made, and it cannot be said that Country Energy acted unreasonably in opposing the appeal and seeking to retain a judgment in its favour: cf. Singh v. Harika (No.2) [2005] NSWCA 212 at [10] and cases there cited. 5 Accordingly, the Court makes the following additional order: 5. Mr. Sheather's costs of the proceedings (but not of the appeal) as from 1 May 2004 to be assessed on an indemnity basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.