Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277 Hearing dates: On the papers Decision date: 14 September 2015 Before: Basten JA at [1]; Leeming JA at [12]; Simpson JA at [18] Decision: (1) Set aside the order for costs made in the District Court on 20 June 2014.

(2) The respondent is to pay the appellant's costs of the appeal (assessed on the ordinary basis), excluding the costs of the application for special costs orders.

(3) The costs of the first trial be in the discretion of the judge before whom the new trial is to be conducted.

(4) The respondent have a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal. Catchwords: COSTS - claim for damages for personal injury - wrongful rejection of expert evidence tendered by plaintiff (appellant) - judgment for defendant - new trial ordered - appellant entitled to costs of appeal - appeal against assessment of damages - assessment upheld - proportion of appeal time taken on unsuccessful appeal ground miniscule - where offer of compromise made by appellant and not accepted, Uniform Civil Procedure Rules 2005 (NSW) 20.26 - appellant's award of damages contingent on outcome of retrial - costs awarded on an ordinary basis - decision on indemnity costs to await outcome of retrial

COSTS - whether Court of Appeal should order costs of first trial - remit question of costs to second trial - erroneous rulings an ordinary hazard of litigation - costs of first trial to be at discretion of new trial judge

COSTS - application for special costs orders - both parties achieved partial success - no order as to costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 51.47, 51.48 Cases Cited: Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427 Coote v Kelly (No 2) [2013] NSWCA 457 Hatziandoniou v Ruddy [2015] NSWCA 234 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208 Category: Costs Parties: George Hatziandoniou (Appellant) Michael Ruddy (Respondent) Representation: Counsel: M Williams SC/R O'Keefe (Appellant) K P Rewell SC/J B Turnbull (Respondent)