Borjana Kragic v Mazhar Hallak; Borjana Kragic v Robert James Abdoo (No. 2) [2013] NSWDC 106

District Court New South Wales

Medium Neutral Citation: Borjana Kragic v Mazhar Hallak; Borjana Kragic v Robert James Abdoo (No. 2) [2013] NSWDC 106 Hearing dates: On the papers Decision date: 16 July 2013 Before: Mahony SC DCJ Decision: Application for special costs order dismissed Catchwords: Costs; indemnity costs; offers of compromise; Legislation Cited: Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 Cases Cited: Old v McInnes & Hodgkinson [2011] NSWCA 410 Vieira v O'Shea (No. 2) [2012] NSWCA 121 Whitney v Dream Developments Pty Limited [2013] NSWCA 188 Category: Costs Parties: Borjana Kragic - Plaintiff Mazhar Hallak - Defendant Robert James Abdoo - Defendant Representation: T Meakes - Plaintiff J Gracie - Defendants File Number(s): 11/242265 12/226194 Publication restriction: Nil

Judgment ON COSTS 1On 26 April 2013 I delivered judgment in the above two matters which were heard together. In the first matter liability was not in issue as breach of duty of care had been admitted. Liability in respect of the second accident which occurred on 6 October 2010 was in issue, as was contributory negligence. 2Damages were assessed in respect of the first matter in the sum of $148,520.00. A verdict for the plaintiff and judgment in that sum was entered accordingly. 3In respect of the second accident (i.e. matter No. 11/242265) a verdict and judgment was entered in favour of the plaintiff in the sum of $25,600.00. 4Other orders were made, including the usual order that the defendant pay the plaintiff's costs. However, liberty was granted to the parties to apply on seven days' notice in respect of any special costs order sought. 5An application was made by the plaintiff for a variation of that costs order based on an offer of compromise served by the plaintiff on 14 March 2013 in each matter. 6The parties agreed that I deal with the application on the papers, and a timetable for filing of submissions was agreed and complied with. When it became clear that those submissions relied on Court of Appeal decisions in Old v McInnes & Hodgkinson [2011] NSWCA 410 and Vieira v O'Shea (No. 2) [2012] NSWCA 121, I advised the parties that I would not deliver judgment on the application until such time as the Court of Appeal had delivered its judgment in Whitney v Dream Developments Pty Limited, in which the Court of Appeal sat as a Full Court in order to determine whether, inter alia, Old v McInnes & Hodgkinson had been properly decided. The Court of Appeal delivered its judgment on 25 June 2013 - see Whitney v Dream Developments Pty Limited [2013] NSWCA 188.