[2013] NSWCA 429

Berkeley Challenge Pty Ltd v Howarth (No 2)

Order the respondent to pay 50% of the appellant's costs of the appeal. [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

COSTS - exception to the general rule that costs follow the event - challenge to assessment of damages - multiple issues - partial success - apportionment - question of degree of success of each party

Legislation cited

Workers Compensation Act 1987 (NSW), § 151Z

Judgment

[1]
THE COURT: This matter involved an appeal against an assessment of damages in proceedings in negligence in the District Court. (A challenge with respect to liability was abandoned when the appellant filed its written submissions on 3 October 2012.) Before the calculation of interest, the District Court judgment was in an amount of approximately $976,100. The appeal resulted in a reduction in that amount to approximately $821,600. The variation was $154,500, or 16%. It appears that no offers of compromise were made (or none that could be relied on) but the respondent submitted that there should be a departure from the usual costs order on the basis that the appellant had had quite limited success on the appeal.
[2]
It is correct to say that the appellant failed in its challenge to the assessment of non-economic loss and to aspects of the grounds of appeal in relation to complaints on which it was partly successful. The appellant was also unsuccessful in its challenge to the calculation of workplace injury damages, for the purposes of s 151Z of the Workers Compensation Act 1987 (NSW). The recalculation under that section was consequential upon the appellant's success in other respects. In these circumstances, and somewhat boldly, the respondent submitted not merely that the appellant should not have its costs, but that it should pay part of the respondent's costs of the appeal.
[3]
The appellant submitted that its success was significant, that it succeeded on "most" of its grounds, that the respondent had made no concessions and that the whole appeal was over within half a day.
[4]
Each party exaggerated its position as to the outcome of the appeal. The appellant was not as successful as it suggested in its response, but it should not be deprived of all its costs, let alone ordered to pay part of the respondent's costs. It is, however, appropriate that there should be some reduction in the costs it receives. A damages appeal does not involve a generic challenge to an award (as was once the case), but rather a series of independent challenges to particular heads of the award of damages. It is therefore possible to make an assessment of the degree of success of each party, although that is not necessarily reflected in the proportionate reduction: it is not possible, for example, to say that the appellant sought a reduction of the damages in the order of 30% and, having obtained a reduction of 15%, has obtained success and failure in equal measures.
[5]
Taking into account the issues on which the appellant was unsuccessful, and the limited degree of success on other issues, the respondent should be ordered to pay 50% of the appellant's costs of the appeal.
[6]
This is an additional order and no variation is required to the orders made on 8 November 2013.