State of NSW v Tyszyk (No. 2) [2008] NSWCA 180

New South Wales Court of Appeal

CITATION: State of NSW v Tyszyk (No. 2) [2008] NSWCA 180

HEARING DATE(S): On written submissions

JUDGMENT DATE: 8 August 2008

JUDGMENT OF: Giles JA; Campbell JA

(1) Respondent to pay costs of the Appellant of the appeal, and of the cross-appeal: (a) on the ordinary basis to and including 27 June 2007, and DECISION: (b) on the indemnity basis from the start of 28 June 2007. (2) Respondent to pay the Appellant's costs in the court below: (a) on the ordinary basis to and including 21 September 2006, and (b) on the indemnity basis from the start of 22 September 2006.

CATCHWORDS: COSTS – costs of appeal and cross-appeal – where Appellant served on Respondent Offer of Compromise under the Uniform Civil Procedure Rules and a Calderbank offer – application of r 42.14 UCPR to proceedings in Court of Appeal – where Appellant obtained result no less favourable to it than the terms of the offer it made – where Appellant neither succeeded nor failed on new argument run on appeal – whether indemnity costs appropriate – costs of proceedings in court below – where Appellant made Calderbank offer to Respondent on day before trial – where Appellant served Offer of Compromise under the UCPR before second tranche of hearing – where result of appeal is that Appellant ought to have succeeded in court below on basis other than that run at trial or extensively on appeal

LEGISLATION CITED: Supreme Court Rules 1970 Uniform Civil Procedure Rules

CATEGORY: Consequential orders

Hill v Chief Constable of West Yorkshire [1989] AC 53 CASES CITED: Jovic v Lamont [2007] NSWCA 47 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 State of NSW v Tyszyk [2008] NSWCA 107