Wharekawa v AEA Constructions Pty Ltd [2018] NSWSC 1023

Supreme Court New South Wales

Medium Neutral Citation: Wharekawa v AEA Constructions Pty Ltd [2018] NSWSC 1023 Hearing dates: On the papers Date of orders: 03 July 2018 Decision date: 03 July 2018 Jurisdiction: Common Law Before: Fagan J Decision: The plaintiff's costs payable under Order 3 made 22 May 2018 shall not include any costs of or incidental to the interlocutory hearings on 10 and 11 October 2017 but otherwise shall be on the ordinary basis up to 15 April 2016 and on the indemnity basis thereafter. Catchwords: COSTS – party/party – bases of quantification – indemnity costs – judgment for plaintiff in proceedings for negligence causing personal injury – offer of compromise and Calderbank offer separately made by plaintiff – where offers rejected by defendant – where damages awarded by judgment greater than plaintiff's offer of compromise and Calderbank offer – where plaintiff prima facie entitled to indemnity costs unless Court otherwise orders – Uniform Civil Procedure Rules 2005 (NSW), r 42.14 – whether significant change in plaintiff's case between date of offer and date of trial – where expert medical reports not served on defendant at time of offer – where plaintiff's statement and other medical reports raising same evidentiary issues nevertheless served on defendant by the time of offer – costs awarded on indemnity basis from date of offer Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Nominal Defendant v Hawkins [2011] NSWCA 93 Raymond Wharekawa v AEA Constructions Pty Ltd (unrep, NSW Supreme Court, Fagan J, 11 October 2017) South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Vale v Eggins (No 2) [2007] NSWCA 12 Wharekawa v AEA Constructions Pty Ltd [2018] NSWSC 684 Category: Costs Parties: Raymond Wharekawa (plaintiff) AEA Constructions Pty Ltd (first defendant) Representation: Counsel: Mr David Higgs SC/Mr Andrew Davis (plaintiff) Mr John Maconachie QC/Mr Mitchell Davis (first defendant)