State of New South Wales v Abed (No 2) [2015] NSWCA 47

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Abed (No 2) [2015] NSWCA 47 Hearing dates: On the papers Date of orders: 13 March 2015 Decision date: 13 March 2015 Before: Bathurst CJ at [1]; Macfarlan JA at [2]; Gleeson JA at [3] Decision: 1. Ms Abed to pay 75% of the State's costs of the appeal and Ms Abed's cross-appeal. 2. Ms Younis and Mr Younis to pay 90% of Ms Abed's costs of their respective cross-appeals. 3. Ms Younis to pay the whole of the State's costs of the proceedings in this Court. 4. No order as to costs as between the State and Mr Younis in respect of the proceedings in this Court. 5. In lieu of the order made by Sorby DCJ on 27 September 2013: (a)the State to pay 25% of Ms Abed's costs of the proceedings below from 13 May 2013; (b)Ms Younis to pay the State's costs of the proceedings below; (c)Ms Younis to pay to the State the amount of the State's costs liability to Ms Abed referred to in (a) above. Catchwords: COSTS – Indemnity costs – Offer of compromise – UCPR r 20.26 – Reasonableness of rejection – Where respondent achieved better outcome than offer of compromise

COSTS – Party to party – Ordinary basis – Where respondent unsuccessful on main issue on appeal but partially successful on other issues

COSTS – Appeal costs – Suitor's fund – Suitor's Fund Act 1951 (NSW) s 6(1) – Where respondent unsuccessful on cross-appeal on the issue also the subject of the appellant's successful appeal – Where erroneous decision of primary judge is made in context where the respondent persuaded the primary judge to act on a basis for decision overturned on appeal – Where respondent's fabricated complaint formed the basis for civil proceedings – Where respondent defended the claim at trial on evidence found to be inherently untrue – Certificate refused