State of NSW v Doherty (No 2) [2011] NSWCA 350

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of NSW v Doherty (No 2) [2011] NSWCA 350 Hearing dates: On the papers Decision date: 21 November 2011 Before: Whealy JA, Handley AJA Decision: (1) Judgment for $678,652.15 substituted for that entered by this Court on 5 August 2011; (2) The appellant to pay the respondent's costs of the appeal on the ordinary basis up to and including 11 October 2010, and thereafter on an indemnity basis including the costs of this motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - no question of principle Legislation Cited: UCPR Pt 42 r 42.14 Category: Costs Parties: Appellant/cross-respondent: State of New South Wales Respondent/cross-appellant: Barry Doherty Representation: Appellant: Walter Madden Jenkins File Number(s): 2008/289267 Decision under appeal Citation: Doherty v State of New South Wales [2010] NSWSC 450 Date of Decision: 2010-05-20 00:00:00 Before: Price J File Number(s): SC 2008/20078

Judgment 1THE COURT: The Court, as presently constituted, together with Hodgson JA, gave judgment in this matter on 5 August 2011, allowing the appeal in part, dismissing the cross appeal, and making no order as to costs. When judgement was delivered counsel for the respondent informed the Court that an application would be made for a different costs order. 2The respondent filed a notice of motion on 18 August seeking a variation of the substantive judgment under the slip rule, and orders for the costs of the appeal. The parties filed written submissions and agreed to the notice of motion being determined on the papers by the remaining judges following the retirement of Hodgson JA. 3The substantive judgment should be varied because the Court was not informed that the judgment below had been varied. The variation of the judgment in this Court was not opposed and that order will be made. 4The case for the orders for costs sought in the notice of motion was based on an offer of compromise served by the respondent on 11 October 2010. The respondent offered to accept $650,000 inclusive of post-judgment interest to 16 September 2010 plus costs in lieu of the judgment for $755,907.06 and costs entered on 20 May 2010 and the post-judgment interest that had accrued since. 5The appellant rejected the offer but failed to better it on the appeal. 6The judgment substituted by this Court, as amended by our order, will be $678,652.15. 7Thus the respondent's offer was $28,652.15 plus post-judgment interest to 16 September 2010 less than the judgment entered by this Court as varied. 8The difference is not insignificant in either absolute or relative terms and the offer was substantially less than the judgment below. 9The respondent is not automatically entitled to an order for indemnity costs under UCPR Pt 42 r 42.14. The rule applies to a respondent plaintiff in an appeal, and the respondent is entitled to the appropriate costs orders unless the Court otherwise orders. 10In our judgment the appellant's written submissions disclose no reason for the Court to otherwise order. 11A relevant consideration of some importance is that all seven grounds in the appellant's original notice of appeal, filed on 17 August 2010, failed as did the three additional grounds in the amended notice of appeal filed on 16 September 2010. The appellant succeeded on only one of the two grounds added in the further amended notice of appeal filed on 7 April 2011, shortly before the hearing on 12 April. 12In our judgment therefore the respondent's motion of 18 August 2011 succeeds and the following orders are made: (1) Judgment for $678,652.15 substituted for that entered by this Court on 5 August 2011; (2) The appellant to pay the respondent's costs of the appeal on the ordinary basis up to and including 11 October 2010, and thereafter on an indemnity basis including the costs of this motion.