Dalma Formwork (Australia) Pty Ltd & Anor v Maricic (No 3) [2008] NSWCA 29

New South Wales Court of Appeal

CITATION: Dalma Formwork (Australia) Pty Ltd & Anor v Maricic (No 3) [2008] NSWCA 29 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 March 2008

JUDGMENT DATE: 12 March 2008

JUDGMENT OF: Giles JA at 1; Basten JA at 32; McClellan CJ at CL at 43

DECISION: (1) Grant leave to appeal and direct that the notice of appeal be filed within seven days; (2) Appeal allowed; (3) Set aside the substantive order made on 23 March 2007, and in lieu thereof order that the second and third defendants pay the plaintiff's costs up to 28 August 2004 and that the plaintiff pay the second and third defendants' costs thereafter, in both cases assessed on a party and party basis; (4) Opponent pay the applicants' costs of the application for leave to appeal and the appeal and to have a certificate under the Suitors Fund Act.

CATCHWORDS: Costs - defendant's offer of compromise - made under Pt 19A District Court Rules - at the time, consequences of plaintiff's failure to accept offer and then not bettering it under Pt 39A District Court Rules - prior to finalisation of proceedings Uniform Civil Procedure Rules came into force - different consequences under Pt 42 r 5 - costs would substantially eat up damages - whether a relevant consideration - discretion miscarried - whether order dispensing with UCP rule - or order otherwise under UCP rule - order made as if under District Court Rules.

CATEGORY: Principal judgment

Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404; Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49; CASES CITED: Hillier v Sheather (1995) 36 NSWLR 414; Houalchanthara v Bednarszyk (CA, 14 October 1996, unreported); House v The King (1936) 55 CLR 499.