Kendirjian v Ayoub [2008] NSWCA 194

New South Wales Court of Appeal

CITATION: Kendirjian v Ayoub [2008] NSWCA 194

HEARING DATE(S): 29 October 2007, 26 November 2007

JUDGMENT DATE: 14 August 2008

JUDGMENT OF: Beazley JA at 1; McColl JA at 2

(1) Appeal dismissed with costs. (2) Respondent to file and serve within seven days written submissions as to whether any, and if so which, of the costs of the appeal should be ordered to be paid on an indemnity basis. (3) Mr Conomos and Mr Lepore to file and serve within a further fourteen days written submissions dealing with: (i) what part of the wasted costs should be paid by either or both of them; and DECISION: (ii) whether any, and if so which, of the costs of the appeal should be ordered to be paid on an indemnity basis. (4) Leave to the appellant to file and serve within 21 days written submissions dealing with: (i) the question of who should bear the burden of the wasted costs; and (ii) whether any, and if so which, of the costs should be ordered to be paid on an indemnity basis.

CATCHWORDS: DAMAGES – motor vehicle accident – whether damages awarded inadequate – credibility of plaintiff – whether primary judge palpably misused position as trial judge in finding on the basis of video evidence that plaintiff not severely physically and psychologically disabled – held – no - COURTS AND JUDGES – adequacy of reasons – whether substantial miscarriage of justice manifest from primary judge's observation that plaintiff's behaviour while giving evidence "bizarre" – held – no - LEGAL PRACTITIONERS – inadequacy of written submissions – wasted costs – plaintiff's legal representatives to pay wasted costs incurred by their serious neglect