Air Link Pty Ltd v Paterson (No 2) [2009] NSWCA 342

New South Wales Court of Appeal

CITATION: Air Link Pty Ltd v Paterson (No 2) [2009] NSWCA 342

HEARING DATE(S): On papers

JUDGMENT DATE: 20 October 2009

JUDGMENT OF: Allsop P at 1; Ipp JA at 6; Sackville AJA at 7

DECISION: 1. Costs order made on 20 August 2009 be varied by ordering the appellant to pay the respondent's costs of the appeal proceedings up to (and including) 27 July 2009 on a party/party basis and therefter the appellant to pay the respondent's costs on an indemnity basis. 2. The appellant pay the respondent's costs of the motion.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Consequential orders

PARTIES: Air Link Pty Ltd Malcolm Ian Paterson

FILE NUMBER(S): CA 40407/2008

SOLICITORS: Norton White Lawyers (Appellant) M J Duffy & Son Solicitors (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3938/2005

LOWER COURT JUDICIAL OFFICER: Elkaim SC DCJ

LOWER COURT DATE OF DECISION: 4 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Paterson v Air Link Pty Ltd [2008] NSWDC 241

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40407/2008

ALLSOP P IPP JA SACKVILLE AJA

20 October 2009 AIRLINK PTY LTD v PATERSON (NO 2) Costs Judgment 1 ALLSOP P: Judgment in this matter was delivered on 20 August 2009 ([2009] NSWCA 251). The respondent has applied by notice of motion for an order varying the costs order made on 20 August to provide for indemnity costs from 27 July 2009. The matter was heard on 4 August 2009. 2 The basis for the order sought is the service on 27 July 2009 of an offer of compromise under the Rules. The offer of compromise was to the effect that the respondent would accept a payment of $50,000 less than the judgment sum awarded ($389,500, instead of $439,500). The offer provided that the appellant would pay the respondent's costs of the District Court proceedings in accordance with the previous orders made in the District Court and would pay the respondent's costs of the proceedings in the Court of Appeal. Four days were given for acceptance, that is until 5 pm on 31 July 2009, which was a Friday; 27 July 2009 was a Monday; the appeal was heard on Tuesday 4 August. 3 The appellant resists the application principally on the basis that the hearing was one of public importance for the airline industry and the general public. It is true that the matter raised considerations of some importance for the industry. However these were not matters which concerned Mr Paterson. He had been injured and was entitled to a judgment. His interest was in the prompt and certain resolution of the case. He was prepared to make a not insignificant deduction for the safety of a settlement of a case which was otherwise well-founded. 4 It is true that much of the work had been done in the appeal by way of written submissions and other preparation. However, no doubt Mr Paterson was faced with the final costs of preparation and presentation of his case. He thought it in his interests to attempt to settle the matter. There was no artificiality or subterfuge in the use of the Rules at this stage. Mr Paterson suffers a disadvantage of only gaining the benefit in relation to final preparation and trial expenses. 5 In my view, there is no reason why Uniform Civil Procedure Rules 2005 (NSW), Part 42 Rule 42.14 should not apply. I would make the orders substantially sought in the notice of motion they being: