Kairouz v Rice (No 2)

MEAGHER JA: In this matter the Court gave judgment earlier this morning and Mr Shore, who was for the Respondent, has sought to query two of the Orders made. The first was a costs Order. He submits that the costs Order which was that the Respondent pay the Appellant's costs both below and in the Court of Appeal, and have a Certificate, should be varied not as to the appellate costs but as to the costs at first instance, because of certain offers of compromise previously made, which I must say had never been drawn to the Court's attention on the appeal.

In my view that challenge to the costs Order must fail. Since the costs Order made below was impliedly under review in the appeal, and we had the power to make any Order we thought fit about those costs, it was possible and perhaps advisable for the Respondent to have mentioned the previous compromises during the currency of the appeal, but he did not.

The other query which Mr Shore raised is whether in the Order that there be a new trial limited to the issue of damages, there should be added a rider to the effect that the Respondent was not prevented from seeking to demonstrate that no damages are payable because no damage occurred. In my view the Respondent is clearly in that position already and the Orders made do not have to be amended to make that plain. I therefore reject the second submission that Mr Shore makes.