New South Wales Court of Appeal CITATION: AAMI LIMITED v HAIN [2008] NSWCA 90 HEARING DATE(S): 5 March 2008 JUDGMENT DATE: 12 May 2008 JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; McClellan CJ at CL at 3 DECISION: 1. Respondent's costs of the appeal up to 7 August 2007 be assessed on an ordinary basis 2. The respondent's costs of the appeal thereafter be assessed on an indemnity basis. CATCHWORDS: COSTS - application for indemnity costs - offer of compromise by respondent - offer not accepted PARTIES: AAMI (Appellant) Sean Hain (Respondent) FILE NUMBER(S): CA 40125/07 COUNSEL: S G Campbell SC/S E McCarthy (Appellant) I D Roberts SC/A J Black (Respondent) SOLICITORS: Curwoods Lawyers (Appellant) Creaghe Lisle (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 38/2006 LOWER COURT JUDICIAL OFFICER: Charteris DCJ LOWER COURT DATE OF DECISION: 2 March 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40125/07 DC 38/2006 BEAZLEY JA TOBIAS JA McCLELLAN CJ at CL MONDAY 12 MAY 2008 AAMI LIMITED v HAIN Judgment On Costs 1 BEAZLEY JA: I agree with McClellan CJ at CL. 2 TOBIAS JA: I agree with McClellan CJ at CL. 3 McCLELLAN CJ at CL: The Court handed down judgment in this matter on 1 April 2008. The appeal was dismissed but following an application by counsel for both parties the question of costs was reserved to await further submissions. Those submissions have now been received. 4 The Court has been informed that by letter dated 6 August 2007 the solicitors for the respondent served on the appellant's solicitors an offer of compromise. By that offer the respondent offered to compromise the claim to the extent that the verdict and judgment of the trial judge be reduced by 10 percent. The appellant did not accept the respondent's offer. 5 The respondent now seeks an order for indemnity costs from 7 August 2007. An opportunity was provided for the appellant to make submissions as to why the orders which the respondent seeks should not be made. The appellant was content to make no submissions in the matter. 6 In these circumstances the following orders for costs should be made: 1. That the respondent's costs of the appeal up to 7 August 2007 be assessed on an ordinary basis. 2. That the respondent's costs of the appeal thereafter 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.