MICHELIN AUSTRALIA PTY LTD v NTI LIMITED [2010] NSWCA 223

New South Wales Court of Appeal

CITATION: MICHELIN AUSTRALIA PTY LTD v NTI LIMITED [2010] NSWCA 223

HEARING DATE(S): 31 August 2010

JUDGMENT DATE: 31 August 2010

JUDGMENT OF: Basten JA at 1; Sackville AJA at 1; Einstein J at 1

EX TEMPORE JUDGMENT DATE: 31 August 2010

(1) Allow the appeal. (2) Set aside orders 2 and 3 made in the District Court on 8 October 2009 and in place thereof: DECISION: (a) give judgment for the second defendant against the plaintiff; (b) except as otherwise provided by orders made on 8 October 2009, order the plaintiff to pay the second defendant's costs of the trial. (3) Order that the respondent pay the appellant's costs in this Court.

CATCHWORDS: APPEAL – civil – evidence – whether conclusion supported by evidence - COSTS – claim by unsuccessful plaintiff where defendant failed to disclose identity of concurrent wrongdoer – plaintiff making no inquiry as to identity of manufacturer where denied by defendant - Civil Liability Act 2002 (NSW) s 35A - COSTS – indemnity costs – offer of compromise by defendant – whether appropriate to award indemnity costs where defendant failed to disclose identity of concurrent wrongdoer – Civil Liability Act 2002 (NSW) s 35A - PROCEDURE – reopening sought after delivery of judgement – application to call evidence available at all stages – evidence not called because thought unnecessary – forensic decision not to call at appropriate time – application refused

Civil Liability Act 2002 (NSW), 35A, Pt 4 LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules (NSW), rr 20.26, 42.15A