Cheng v Geussens (No 2) [2014] NSWCA 254

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cheng v Geussens (No 2) [2014] NSWCA 254 Hearing dates: On the papers Decision date: 04 August 2014 Before: Basten JA at [1]; Barrett JA at [2]; Ward JA at [3] Decision: 1. Set aside order 4 made on 8 April 2014 and in place thereof order that the applicant/appellant pay the costs of the respondent in this Court assessed on the ordinary basis. 2.No order as to the costs of the respondent's notice of motion filed 22 April 2014. [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: PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where appellant successful in reducing assessment of his contributory negligence - where respondent made offer of compromise prior to District Court proceedings that was not accepted and judgment on appeal no more favourable to the appellant than the offer - where appeal was limited to question of liability and damages not yet determined by the District Court - whether appellant should pay respondent's costs of the appeal and/or District Court proceedings on an indemnity basis from the day following the day of making of the offer of compromise Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson (No 2) [2012] NSWCA 420 Cheng v Geussens [2014] NSWCA 113 Daly v Thiering [2013] HCA 45; (2013) 88 ALJR 67 Encyclopaedia Britannica Australia Ltd v Campbell (No 2) [2009] NSWCA 335 Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 The Uniting Church v Takacs (No 2) [2008] NSWCA 172 Category: Costs Parties: Yingen Cheng by his tutor Gendi Qian (Applicant) Joachim Geussens (Respondent) Representation: Counsel: P Segal (Applicant) J B Turnbull (Respondent) Solicitors: McInnes Wilson (Respondent) File Number(s): 2013/62444 Publication restriction: Nil Decision under appeal Date of Decision: 2014-02-06 00:00:00 Before: Elkaim DCJ File Number(s): 2011/411308