procedural. The judgment amount was amended to $404,474.20; the defendant was ordered to pay the plaintiff’s proceeding costs on the ordinary basis to 14 May 2018 and on the indemnity basis from 15 May 2018,...
Key principles
In deciding whether to award indemnity costs after a plaintiff beats a compliant offer of compromise, the court must exercise the discretion conferred by the Civil Procedure Act...
A defendant seeking a stay of a first-instance judgment pending appeal must establish grounds justifying departure from the successful plaintiff's general entitlement to the...
A claimed risk that judgment money could not be recovered after a successful appeal did not justify a stay where there was no actual appeal and the asserted risk of dissipation...
Issues before the court
Whether the plaintiff should receive indemnity costs after obtaining judgment more favourable than her offers of compromise.
Whether the judgment amount should be adjusted for the parties' agreed revised out-of-pocket expenses.
Whether the defendant established grounds for a stay pending a possible appeal.
Plain English Summary
The plaintiff had won a judgment and had earlier made settlement offers that were lower than the result ultimately awarded. The court considered those offers reasonable and ordered the defendant to pay the plaintiff's costs on an indemnity basis from the day after the first offer. The parties agreed to reduce the judgment total to account for revised out-of-pocket expenses. The defendant's application to pause enforcement was refused because there was no filed appeal with formulated grounds and the claimed risk of repayment difficulty was not convincingly established.
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Whether the cited 'usual practice' concerning stays pending appeal required a stay.
Cited legislation
3 cited instruments linked from this judgment.
Deep Dive
2,036 words · generated 01/10/2026
What happened
This decision concerns two applications made after the plaintiff, Jodie Lee (a pseudonym), obtained judgment against the defendant, Nita Dhupar. The underlying judgment was delivered on 19 November 2020 and awarded $408,700. The present reasons address costs and whether execution of that judgment should be stayed while the defendant considered an appeal. They do not reconsider the substantive liability and damages decision, which the reasons say readers should assume familiarity with [1].
The plaintiff sought indemnity costs, relying on a series of offers of compromise that the defendant had not accepted. The defendant sought a stay. At the time the stay motion was heard, the defendant had filed a Notice of Intention to Appeal, but not a Notice of Appeal identifying grounds [4]. The parties also agreed that the amount of the judgment should be reduced to reflect a revised calculation of out-of-pocket expenses. The agreed figure was $404,474.20.
The court treated the plaintiff's first offer, made on 14 May 2018 for $120,000 plus costs, as the central offer for the indemnity-costs application. The timeline in the reasons records four later plaintiff offers: $150,000 on 3 October 2018, $105,000 on 11 April 2019, and two offers of $175,000, on 17 April and 30 May 2019. The defendant's only monetary offer was $100,000 plus costs, made on 17 October 2019, after the evidence had concluded. The plaintiff rejected it the following day.
The final orders amended the judgment to $404,474.20, awarded ordinary costs up to 14 May 2018 and indemnity costs from 15 May 2018, and dismissed the defendant's stay motion. The defendant was also ordered to pay the costs of both contested motions, with those motion costs payable on an indemnity basis.
Why the court decided this way
For indemnity costs, the court considered UCPR r 42.14(2), which provides for indemnity costs in circumstances where a plaintiff obtains judgment no less favourable than a compliant offer, unless the court orders otherwise. The judge emphasised that costs remain subject to the broad discretion under s 98 of the Civil Procedure Act 2005 (NSW), exercised according to the dictates of justice under s 58(2). The reasons cite Gray v Richards (No 2) for the need for a broad evaluative judgment, and Northern Territory v Sangare and Oshlack v Richmond River Council for the compensatory, rather than punitive, character of costs orders.
On the facts, the judge found the May 2018 offer genuine, reasonable and substantial. It was made after both sides had obtained expert reports. The court compared the $120,000 offer with the eventual $261,000 award for non-economic loss alone. It also referred to an equivalent s 16 value of $233,000 as at the date of the offer. The point was not simply that the plaintiff later obtained more, but that the offer represented a meaningful compromise when made and could be evaluated against the information then available.
The defendant had argued that the plaintiff's particulars and expert evidence changed over time. The judge was not persuaded that those changes were exceptional circumstances justifying rejection of the offers. The reasons state that the expanding liability evidence was largely a response to the defendant's initial expert evidence. The court also noted that the defendant did not use UCPR r 20.26(4) to notify the plaintiff that further particulars or documents were needed to assess an offer, or to seek an order concerning the costs consequences. The judge considered that the defendant's representatives had the opportunity to assess the offers as the evidence developed. The resulting order placed ordinary costs up to 14 May 2018 and indemnity costs from the following day.
The stay application failed for a different reason. The court began with the general rule that a successful plaintiff is entitled to the benefit of the judgment. A defendant seeking a stay must establish grounds to justify departing from that position. The judge relied on Alexander v Cambridge Credit Corporation Ltd and the approach previously set out in Jajieh v Woolworths Ltd (No 2): relevant considerations include whether there are reasonably arguable appeal grounds and whether there is a real risk that judgment money could not be recovered after a successful appeal.
The judge distinguished a Notice of Intention to Appeal from an actual Notice of Appeal containing formulated grounds. The defendant's criticisms covered numerous factual and evidentiary matters, but the court considered them not to be recognisable appeal grounds in their existing form. It declined to engage with them as if it were the appellate court. The reasons state that the principal judgment would be considered on appeal if and when a formal appeal with grounds was filed.
The judge also rejected reliance on the "usual practice" language in Woolworths Limited v Strong (No 2). The reasons read those remarks in the context of a different procedural sequence: there, the discussion concerned restitution after judgment money had been paid and an appeal had succeeded. The present application asked prospectively whether execution should be stayed before any actual appeal had been filed. The court noted that Woolworths Limited v Strong (No 2) was later reversed by the High Court in Strong v Woolworths Limited. It concluded that the cited remarks did not displace the established stay principles.
Finally, the alleged risk that the plaintiff would have difficulty repaying the judgment sum was considered speculative. The evidence showed that the plaintiff was a joint tenant in a mortgaged property and had paid employment. The court did not regard the financial information as compelling evidence that the money would be dissipated beyond recovery. In any event, without a filed Notice of Appeal, the court considered further examination of that issue unnecessary.
Before and after state of the law
The judgment presents itself as applying existing costs and stay principles, rather than announcing a new general rule. Before this decision, the relevant framework included the costs discretion in s 98 of the Civil Procedure Act, the indemnity-costs provision in UCPR r 42.14, and the requirement to exercise discretion according to justice. The court understood r 42.14 as creating a presumptive entitlement in a successful plaintiff who obtains a result at least as favourable as a compliant offer, while retaining the court's power to order otherwise.
The decision's practical application of that framework is fact-specific. It explains why the May 2018 offer mattered: it was made after expert evidence was available, was substantially below the eventual judgment, and was not met with a request for clarification under r 20.26(4). The court treated the later evolution of the evidence and claim as part of the ordinary course of litigation, not as an exceptional reason to disregard the offer.
For stays, the decision reaffirmed the starting position stated in Alexander v Cambridge Credit Corporation Ltd: the party who succeeded at trial is generally entitled to the benefit of the judgment. The stay applicant must provide grounds for departure. The judgment also stresses a procedural distinction between filing an intention to appeal and commencing an appeal with grounds formulated under the applicable rules.
The decision does not establish that a Notice of Intention to Appeal can never support a stay, or that a stay must always be refused until a formal appeal is filed. Its reasoning concerns the circumstances before it: no grounds had been formally identified, the defendant's submissions contained general criticisms rather than formulated appeal grounds, and the repayment risk was not persuasively shown. The court treated the question as one of applying the settled principles to that record.
Key passages with plain-English translation
The costs discussion says that the successful party is generally entitled to a compensatory costs order, and that such an order is not punitive. In plain English, the court saw costs as addressing litigation expense that, in justice, should not have been imposed on the successful party. It did not treat indemnity costs as a punishment for refusing settlement.
The court described the May 2018 offer as a genuine, reasonable and substantial compromise. That assessment rested on its amount, the stage of the proceedings, and the available expert material. In plain English, the judge considered that the defendant had enough information to evaluate the offer and that the offer was meaningfully below the eventual result.
On the stay, the judge stated that the defendant had not established the necessary preconditions to justify depriving the plaintiff of the fruits of her victory. In plain English, filing an intention to appeal and making broad criticisms of the judgment did not, in this case, establish a sufficient basis to pause enforcement.
The reasons also describe it as a misnomer to equate a Notice of Intention to Appeal with a filed Notice of Appeal identifying arguable grounds. In plain English, the court treated the notice of intention as an indication of a possible future appeal, not as a completed appeal supported by specified legal errors.
What fact patterns trigger this precedent
The decision is most directly relevant to costs applications where a plaintiff made a compliant offer of compromise, later obtained a judgment no less favourable than the offer, and the defendant argues that the offer could not reasonably be assessed. The facts the court considered important include the offer's timing, the expert evidence then available, the extent of the compromise compared with the eventual award, and whether the offeree used the procedure in UCPR r 20.26(4) to identify missing material or seek clarification.
The decision may also be relevant where a party asks to stay execution based on a possible appeal but has filed only a Notice of Intention to Appeal. The court placed weight on whether an actual Notice of Appeal had been filed with formulated grounds, whether those grounds appeared arguable, and whether refusing a stay would cause irremediable prejudice. A bare concern about repayment was not enough on the evidence in this case.
The ruling should not be detached from its procedural context. The decision does not determine what would happen where a formal appeal with arguable grounds has been filed, where there is persuasive evidence of dissipation or inability to repay, or where other factors alter the balance between the parties.
How later courts have treated it
The supplied judgment does not identify decisions that later considered or applied Lee (a pseudonym) v Dhupar (No 2). It was decided on 17 December 2020, and the legal materials supplied here provide no subsequent treatment of this particular decision. It would therefore be unsupported to state how later courts have treated it.
The judgment itself refers to earlier authorities and describes their relevance. It says that the approach in Jajieh v Woolworths Ltd (No 2) was adopted with approval in SMA v John XXIII College (No 3), and it relies on Alexander v Cambridge Credit Corporation Ltd, Woodlawn Capital Pty Limited v Motor Vehicles Insurance Limited and Cook's Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd in considering stay principles. Those references show the authorities the District Court used; they do not establish later treatment of the present decision.
Still-open questions
The judgment leaves open how its approach would apply where a defendant has filed a Notice of Appeal with specific grounds but the strength or arguability of those grounds remains contested. It also does not resolve what evidence would be sufficient to establish a real risk that judgment money could not be recovered after a successful appeal. The court found the evidence before it insufficient and speculative, but did not set out a comprehensive evidentiary test.
On costs, the reasons do not create a universal rule that a rejected offer will lead to indemnity costs whenever the plaintiff ultimately obtains more. The offer must be considered in context, including whether it complied with the rules, what information was available, and whether circumstances justify a different order. The judgment also does not decide how a court should treat an offer where material particulars were genuinely unavailable or where the offeree properly invoked r 20.26(4).
These are questions for application to other records and authorities, not answers supplied by this decision. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Catchwords
COSTS - application by plaintiff for indemnity costs following judgment
Judgment (7 paragraphs)
[1]
Judgment
These reasons concern two contested notices of motion arising from the principal judgment delivered on 19 November 2020 at which time a verdict and judgment was entered in favour of the plaintiff in the amount of $408,700: Lee (a pseudonym) v Dhupar [2020] NSWDC 717. These reasons assume a familiarity with that decision.
The first motion, filed by the plaintiff, seeks a contested order for indemnity costs and a non-controversial adjustment of the judgment sum. The second motion, filed by the defendant, seeks a contested stay of the execution of the judgment.
When the principal judgment was delivered, the plaintiff foreshadowed filing a notice of motion to seek an order for indemnity costs. At that time, the defendant made an immediate oral application for a stay. No grounds for a stay were identified at that time.
Both applications were deferred to a date to be fixed to enable the parties to prepare and file their respective applications and any evidence in support of the orders sought. I am informed that at present, no Notice of Appeal has been filed, however, the defendant has filed a Notice of Intention to Appeal. On 10 December 2020, the two notices of motion comprising the respective applications for indemnity costs and for a stay were filed in Court and heard instanter.
The plaintiff relied upon two affidavits from her solicitor, Mr Tim Cummings, respectively affirmed on 18 November 2020 and 10 December 2020. Those affidavits set out a chronology of the events outlining the plaintiff's unsuccessful pre-judgment attempts at settlement of the proceedings by way of offers of compromise, together with some details of the plaintiff's financial situation and property interests.
The defendant relied upon two affidavits from her solicitor, Ms Hishani Dassanayake. The first affidavit responded to the costs indemnity application filed by the plaintiff. That affidavit was affirmed on 19 November 2020. The second affidavit, which concerned the defendant's stay application, was affirmed on 10 December 2020.
The paragraphs that now follow deal with consideration of the three claimed elements of relief arising from the respective notices of motion.
[2]
(1) Adjustment to judgment sum for out-of-pocket expenses
There is no dispute that the judgment sum of $408,700 should be amended to the revised sum of $404,474.20 to reflect a recent agreement between the parties as to the plaintiff's out-of-pocket expenses. An order should therefore be made to that effect.
[3]
(2) Indemnity costs application by plaintiff
The plaintiff's application for indemnity costs arises because she has obtained a verdict and judgment more favourable than an offer of compromise that she made and which the defendant did not accept: UCPR r 42.14(2). In fact the plaintiff made a series of offers of compromise which were not accepted by the defendant.
The plaintiff relies upon UCPR r 42.14(2) which provides:
42.14 Where offer not accepted and judgment no less favourable to plaintiff
(1) ...
(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim -
(a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and
(b) assessed on an indemnity basis -
(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and
(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
The plaintiff claims that UCPR r 42.14 should be applied in this case because each of her offers involved genuine attempts at compromise in the litigation at times when the reasonableness of those offers were capable of assessment by the defendant.
In considering the plaintiff's application for indemnity costs it is relevant to observe, as was recorded at paragraphs [1028] to [1029] of the principal judgment, that the particularisation of the elements of the plaintiff's claimed damages had varied and expanded over time so as to extend beyond just damages for non-economic loss.
In the lead-up to the judgment, over the course of time the plaintiff served five successive offers of compromise on the defendant. Each of those offers of compromise was made in compliance with UCPR r 20.26.
The timing, context and content of the respective monetary offers of compromise appears in the table below:
Item Date Event
19.09.2017 Statement of claim filed together with a supporting expert report on liability
14.05.2018 Service of plaintiff's offer of compromise in the amount of $120,000 plus costs
03.10.2018 Service of plaintiff's offer of compromise in the amount of $150,000 plus costs
[4]
All of the plaintiff's rejected offers of compromise, as outlined in the above tabulation were in amounts well below the amount that was ultimately assessed and awarded to the plaintiff pursuant to s 16 of the Civil Liability Act 2002 (NSW) as damages for non-economic loss alone, without regard to the other assessed heads of damage.
When each of those offers are viewed in sequence in the context of the liability issues in the case as framed by the expert evidence which evolved over time, it is plain that all those offers should be seen as representing genuine and reasonable attempts at seeking a compromise resolution of the case having regard to the state of the expert evidence as it evolved at various times, as has been identified in the analysis of that evidence within the principal judgment.
The plaintiff's first four offers of compromise were met with responsive offers from the defendant to settle on the capitulatory basis of a verdict and judgment for the defendant.
Ultimately, the plaintiff obtained a judgment no less favourable than any of the monetary offers she made in the proceedings. Where the plaintiff has achieved a result in the litigation that is equal to or better than an offer that complies with the Rules, a presumptive entitlement to indemnity costs arises.
The plaintiff's first offer of compromise, in the amount of $120,000 plus costs was served on 14 May 2018, which was after the plaintiff had served an expert liability report dated 20 June 2017 from Professor Michael O'Connor and an expert damages report from Dr Samson Roberts on 9 March 2017. That offer forms the sentinel basis of her application for indemnity costs.
That offer was made after the defendant obtained an expert liability report dated 17 November 2017 from Associate Professor Michael Cooper and an expert damages report dated 12 December 2017 from Dr Angelo Virgona.
When the plaintiff's 14 May 2018 offer of $120,000 plus costs is viewed against the amount of $261,000 which was ultimately awarded for s 16 damages for non-economic loss, the reasonableness and the inherent compromise within that offer is self-evident, both when viewed from the perspective of the amount of the judgment of 19 November 2020, and when viewed as to the equivalent s 16 value as at 14 May 2018, namely $233,000.
In my view it is not necessary to look further into the state of the expert evidence or the particulars of claim to assess the compromise nature of that offer. It is plain that the extent of the compromise offered by the plaintiff was genuine, reasonable and substantial.
[5]
Stay application by defendant
Counsel for the defendant made an oral application for a stay immediately after orders were read on 19 November 2020. Subsequently, on 27 November 2020, the defendant gave instructions to her solicitor to seek a stay. The plaintiff has declined to consent to the defendant's request for a stay.
On 1 December 2020, the defendant filed a Notice of Intention to Appeal in the Court of Appeal Registry. At the time the defendant's motion for a stay was heard no concrete grounds for a proposed appeal have been identified either in evidence or in argument.
The defendant's application for a stay is based on what has been referred to as the "usual practice" of staying judgments pending a decision on appeal where there is a risk that the plaintiff will be unable to repay the verdict monies without difficulty or delay if an appeal were to succeed: Woolworths v Strong (No 2) (2011) 80 NSWLR 445, [2011] NSWCA 72, at [68].
In my view the above stated basis for the defendant's application for a stay is based on a misapprehension of the effect of the decision cited in the preceding paragraph. The defendant's reliance on the decision in Woolworths Limited v Strong (No 2) must be viewed in the context of several distinguishing perspectives.
First, the context that case was a hindsight consideration of restitution of already paid judgment monies that followed a successful appeal based on identified and argued grounds whilst awaiting a new trial. Secondly, as I read the remarks critical of the trial judge's failure in that case to follow the usual practice of staying judgments pending appeal, it is not clear as to whether the trial judge was, at the time of refusal, referred to specific grounds of appeal. Be that as it may, the decision in Woolworths Limited v Strong (No 2) was reversed on appeal to the High Court: Strong v Woolworths Limited [2012] HCA 5. Thirdly, and with respect, I observe that the obiter reference to considerations of usual practice at paragraph [68] of the decision made no distinguishing reference to the well-settled and well-followed foundation principles regarding an order for a stay as described in Alexander v Cambridge Credit Corporation Ltd [1985] NSWLR 685, at p 694E.
In Woolworths v Strong (No 2), some of the remarks made in TCN Channel 9 Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104, were cited, as follows:
"67 In Antoniadis (No 2) a plaintiff had received a judgment in the court below, had been paid the amount of the judgment, but found that the judgment was reversed on appeal. At [15]-[16] this Court said:
"We can only express regret that a stay of execution was not granted in this case pending the hearing of the appeal. It was never suggested that the opponent ran any risk of losing the benefit of her judgments by being prevented from enforcing them pending the appeal. She was protected from the purely financial consequences of any delay by the accrual of interest on the judgments in the meantime. This Court regularly stays execution on judgments pending an appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed.
Adherence to this principle would have prevented the present embarrassing situation where the Court has enforced interim payment to the plaintiff but repayment cannot or will not be made without further litigation in the Federal Court with a risk that the opponent will be made bankrupt without the claimant recovering its money."
68 The present situation, where restitution needs to be sought at all, arises from the trial judge having failed to follow the usual practice of staying judgments pending appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed. It is an appropriate time to reiterate the importance of that practice."
[6]
Orders
I therefore make the following orders:
1. The judgment amount of $408,700 entered on 19 November 2020 is varied and amended to the revised amount of $404,474.20 to reflect the revised calculation of out-of-pocket expenses that have been incurred by the plaintiff;
2. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis to 14 May 2018;
3. The defendant is to pay the plaintiff's costs of the proceedings on the indemnity basis from 15 May 2018;
4. The defendant is to pay the costs of the plaintiff's motion seeking indemnity costs;
5. The defendant's notice of motion seeking a stay is dismissed;
6. The defendant is to pay the plaintiff's costs of the dismissed notice of motion seeking a stay;
7. The costs referred to in orders (4) and (6) are to be paid on the indemnity basis.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 December 2020
The judgment amount was amended to $404,474.20; the defendant was ordered to pay the plaintiff’s proceeding costs on the ordinary basis to 14 May 2018 and on the indemnity basis from 15 May 2018, and the plaintiff’s motion costs on an indemnity basis; the defendant’s stay motion was dismissed with indemnity costs.
11.04.2019 Service of plaintiff's offer of compromise in the amount of $105,000 plus costs
16.04.2019 Commencement of the hearing
17.04.2019 Service of plaintiff's offer of compromise in the amount of $175,000 plus costs
30.05.2019 Service of plaintiff's offer of compromise in the amount of $175,000 plus costs
28.06.2019 Last day of evidence
17.10.2019 Service of defendant's offer of compromise in the amount of $100,000 plus costs
18.10.2019 Plaintiff's rejection of defendant's offer of compromise of $100,000 plus costs
The defendant's reference in argument to the various changes in the extent, content and timing of the plaintiff's expert evidence and the various changes in the nature of the particulars of the plaintiff's claim for heads of damage do not identify an exceptional event that justified the rejection of the plaintiff's offer as at 14 May 2018, or for that matter, the offers that were made subsequently.
In that regard, the cascading proliferation of expert evidence on the liability issues was largely the result of the initial expert evidence obtained by the defendant, which itself mandated responsive expert commentary.
It can be taken as a given that the non-static and evolving forensic assessments made by parties at various times in the currency of litigation are necessarily reactive to changes in emphasis in the evidence. Each of those events on the timeline represents opportunities to take stock and give consideration to the direction and cost of the litigation.
The fact that the plaintiff's case succeeded to the extent that was ultimately achieved was a plainly foreseeable occurrence on the predictable timeline of litigation where the evolution of the state and strength of the evidence continued to develop as commonly occurs in such cases.
When the defendant declined to accept each of the plaintiff's offers she did so without engaging in explanatory or clarificatory debate. At those times, to use an analogy taken from the lingua franca of the case, she ran the inherent risk of litigation that ultimately materialised in the plaintiff's favour.
UCPR r 20.26(4) provides:
20.26 Making of offer
(4) If the offeror makes an offer before the offeree has been given such particulars of the offeror's claim, and copies or originals of such documents available to the offeror, as are necessary to enable the offeree to fully consider the offer, the offeree may, within 14 days of receiving the offer, give notice to the offeror that -
(a) the offeree is unable to assess the reasonableness of the offer because of the lack of particulars or documents, and
(b) in the event that rule 42.14 applies to the proceedings, the offeree will seek an order of the court under rule 42.14(2).
The defendant's representatives did not issue any notices pursuant to UCPR r 20.26 to seek clarification or discussion on the plaintiff's first offer of compromise or in respect of any further offers the plaintiff served when the exchange of evidence occurred at various stages of advancement of the litigation.
At those times, the defendant's representatives must be taken to have been in a position to undertake the required evaluations for making forensic decisions as to settlement against the potential risk of success of the plaintiff's case and a judgment for a greater amount. The defendant's representatives did not disclose or seek to rely upon any circumstantial difficulty in analysing the plaintiff's offer nor did they seek to extend the stated time for the consideration of any of the plaintiff's offers of compromise.
Instead, the litigation took its course and the plaintiff went on to incur considerable costs, undoubtedly including otherwise unrecoverable costs components which would have been avoided if the defendant had availed herself of the reasonable settlement opportunity which presented itself for acceptance on 14 May 2018.
Ultimately, the defendant served its only monetary offer of compromise on the plaintiff after all the evidence had concluded and before the delivery of judgment. At that time the plaintiff had already incurred the considerable costs of a fully contested trial where all the ferrets had been followed.
The plaintiff's application for indemnity costs must be determined in accordance with the dictates of justice: s 58(2) of the Civil Procedure Act 2005 (NSW) ("CP Act").
An application for a special order for costs is a consequential aspect of the administration of the well-established legislative framework of the rules of practice and procedure: s 98 of the CP Act. The broad discretion conferred by that legislative provision is not fettered by, or based upon, any general default position that presumes the ordinary basis of costs to be the starting point for the consideration of an application for indemnity costs: UCPR r 42.1, r 42.2; Wright v Apthorpe [2020] NSWCA 300, at [3], [52]-[54], [70]-[71].
The exercise of the general discretion for determining the appropriate order for costs in the face of competing considerations should reflect a broad evaluative judgment of what the justice of the case requires: Gray v Richards (No 2) [2014] HCA 47, at [2].
The determination of an application for indemnity costs must proceed according to the unfettered discretion conferred by the Act and Rules. It must be exercised by reference to the relevant facts connected with or leading up to the litigation where, absent the existence of disentitling factors, the most important guiding principle is that the successful party is generally entitled to a compensatory order for costs. An order of that nature is not punitive but is instead intended to operate as an indemnity against the expense of litigation that should not, in justice, have been visited upon the applicant party: Northern Territory v Sangare [2019] HCA 25, at [24]-[25], following Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [66]-[67], [35], [134].
In this instance, the sentinel relevant fact was the plaintiff's 14 May 2018 offer of compromise for a reasonable sum which was readily capable of forensic consideration at a time when costs were relatively contained. As a consequence of the defendant's non-acceptance of the plaintiff's offer of compromise, the plaintiff was obliged to incrementally incur additional layers of costs, where it appears that a significant proportion of those costs might not necessarily be recoverable on the ordinary basis.
In this case, on the application of the principles identified in the preceding paragraph, I find that the plaintiff has demonstrated an entitlement to be indemnified for those costs. I find that the plaintiff has established her entitlement to an order that the defendants pay her costs on the ordinary basis to 14 May 2018 and on the indemnity basis from 15 May 2018.
It is clear from those cited passages that the expressions of regret in Antoniadis (No 2) concerning the refusal of a stay involved the specific and distinguishable consideration of the Court's power to order restitution to return the payment of judgment monies after a successful appeal which reversed findings made at first instance whilst awaiting a new trial.
Restitution is a hindsight consideration which is different to the prospective question of whether or not arguable grounds of appeal have been established so as to justify an order for a stay of execution on a judgment: Antoniadis (No 2), at [8], [14].
In that case, at [1], it was noted that the trial judge had refused to grant a stay pending an appeal and a further application to the Court of Appeal had also been dismissed. The need for restitution only arose subsequently, following a successful appeal: [4]. The expressions of regret in Antoniadis (No 2) must be read in the context of that procedural context. That decision did not involve what I find to be the distinguishable circumstances of a prospective consideration of the arguability of a potential appeal.
In considering the defendant's arguments for a stay based on those decisions it is relevant to identify the uncontroversial well-accepted settled foundation principles regarding the usual practice for applications to stay the execution of a first instance judgment pending an appeal.
In order to obtain a stay of the judgment in this case the defendant must establish grounds that justify a departure from the general rule that the plaintiff is entitled to the benefit of the judgment entered in her favour: Alexander v Cambridge Corporation Ltd [1985] NSWLR 685, at p 694E. The absence of identified grounds of appeal makes it impossible for any Court to make a non-speculative preliminary assessment of whether there is an arguable appeal: Alexander v Cambridge Corporation Ltd, at p 695.
In an earlier decision, in Jajieh v Woolworths Ltd (No 2) [2010] NSWDC 253, at [19]-[20], I noted that the relevant considerations were conveniently identified as follows:
"19. The onus is on the defendant to establish grounds for ordering a stay so as to justify a departure from the general rule that the plaintiff is entitled to the benefit of a judgment : Alexander v Cambridge Credit Corporation Ltd [1985] NSWLR 685 at [694E].
20. The onus on the defendant is discharged if the defendant can show first, that there is no reasonable probability of retrieving the damages paid pursuant to a judgment in the event of a successful appeal, and secondly, that there should be reasonably arguable grounds of appeal : Andrews v John Fairfax & Sons [1979] 2 NSWLR 184, per Maxwell J at 189B, citing the remarks of Sugerman P, in Bridges v Consolidated Press Ltd, NSW Court of Appeal, unreported, 16 June 1970. These principles have been more recently confirmed in Adeels Palace Pty Ltd v Moubarack; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 per Hodgson JA at [2]."
The above approach was more recently adopted and followed with approval by Elkaim J in SMA v John XXIII College (No 3) [2020] ATSC 236, at [5].
In the present case it is incumbent upon the applicant defendant to demonstrate that there is an appropriate reason for a stay to be granted so as to displace the already cited general rule identified in Cambridge Credit Corporation Ltd.
The foremost consideration is the question of whether the applicant for a stay can show an arguable case for an appeal, as was also identified in Woodlawn Capital Pty Limited v Motor Vehicles Insurance Limited [2015] NSWCA 227. In that case, at [9] the following statement was made:
"9. The central determinant as to whether a stay will be granted and if so upon what terms, if any, is the court's assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who succeeded at trial is entitled to the fruits of its victory. The court's concern at all times to ensure that its ultimate orders will be effective: Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322; [2008] 2 Qd R 453 at [15]. See also Appeal and Appellate Courts in Australia 2014, LexisNexis at 8.5-8.14."
A review of Chapter 8 of the cited text Appeal and Appellate Courts in Australia and New Zealand by MJ Beazley et al, 2014, does not contain any commentary, critical or otherwise, concerning the decision in Woolworths Ltd v Strong (No 2), upon which the defendant relies for a stay in this case.
In Cook's Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322; [2008] 2 QdR 453, at [15], a focal point for the consideration of an application for a stay was identified as follows:
"15. Accordingly, the focus of this Court's attention must be upon whether Cook's appeal might be rendered nugatory by a refusal of a stay and whether Cook would be irremediably prejudiced if the stay were not granted and its appeal were ultimately upheld."
Recognising that there is a material difference between a document which states an intention to appeal and a document that constitutes an actual appeal, in my view it would seem nonsensical to argue that the refusal of an application for a stay renders nugatory an intention to appeal so as to cause irremediable prejudice to a party who might in due course intend to initiate and pursue an appeal but who has not yet actually commenced an appeal by filing grounds of appeal: Cook's Constructions, at [14]-[15].
It is plain from the decisions in Cook's Constructions, at [8] and [10], that the Court in that instance was concerned with an appeal on actual grounds that had actually been filed. The reference to an appeal having been started or commenced could have no other meaning. That is different to the circumstance of simply filing a holding appeal pursuant to r 761(1) of the Uniform Civil Procedure Rules (1999) Qld, which is an equivalent procedure to filing a Notice of Intention to Appeal in this jurisdiction: UCPR r 51.9.
In my view, an appeal should not be taken to have been filed or commenced until the formal filing of a Notice of Appeal in which the claimed grounds of appeal have been identified and stated in accordance with the applicable rules governing appeals: UCPR r 51.16, r 51.18.
In my view, the authorities that are directed at the issue of whether an appeal might be rendered nugatory absent the grant of a stay should not be taken to apply to circumstances where a defendant has only filed a Notice of Intention to Appeal. Until the defendant files a formal Notice of Appeal with specifically formulated grounds that can reasonably be said to identify arguable error, it is a misnomer to seek to equate a Notice of Intention to Appeal with a Notice of Appeal that has actually been filed and which identifies arguable grounds.
In arguing for a stay in this case, the defendant has not pointed to any such grounds of appeal, but instead has in general terms referred to the fact of a proposed appeal on liability, causation and damages.
The defendant's written submissions, which were provided at the time of the application for a stay was made, refer to criticisms of the judgment that, without more, do not comprise grounds of appeal.
Without attempting completeness, those criticisms traverse numerous topics which were the subject of fact findings in the principal judgment. They include matters of inference; onus of proof; whether or not a factual witness was used as an expert witness; reliance on selected parts of the evidence; the inferences to be drawn from the defendant's statement to her solicitor as tendered in evidence; what conclusions ought to have been drawn from the defendant's after-the-event alteration of her clinical records by the addition of a material date; the manner in which the expert evidence was analysed; the intra-operative conclusions the defendant ought to have made; the conclusions to be arguably drawn from post-operative investigatory tests; the status of the guidelines from the manufacturer of Filshie clips for assessing whether or not there had been a breach of the duty of care owed; whether the defendant followed those guidelines; the manner in which photographic images were interpreted; and an asserted judicial failure to grapple with a critical factual issue.
It is invidious, and not my function as the trial judge, to engage with those assertions, none of which have been reduced to a set of recognisable grounds of appeal. If and when a Notice of Appeal is filed containing conventionally formulated grounds of appeal, the primary judgment will either stand or fall following a fair appellate reading and consideration of the judgment as a whole in light of any such filed grounds.
In the present circumstances I do not consider that the obiter remarks in Woolworths Limited v Strong (No 2) concerning a "usual practice" based on the cited portions of the judgment in Antoniadis (No 2) operate to displace the identified and well-settled principles identified in Alexander v Cambridge Credit Corporation Ltd.
In considering whether the factor that the defendant might be irremediably prejudiced from achieving restitution in the event of a successful appeal, the defendant must show that there is a risk the judgment monies may be dissipated beyond the defendant's reach for recovery. In that regard the defendant argued there was a risk the plaintiff would have difficulty repaying the judgment monies in the event of a successful appeal. On the evidence in this case, a consideration along those lines is doubly speculative. That is because, first there is no actual appeal to consider at this point, and secondly, such a risk or difficulty has not been persuasively demonstrated.
The plaintiff is a joint tenant with her husband in a property that is subject to a mortgage, and she also has some paid employment. The plaintiff's financial statements, which were sought by the defendant some 8 days after the delivery of the judgment, do not of themselves compellingly reveal a material risk that judgment monies, once paid, would be dissipated beyond restitutionary reach.
My evaluation of the defendant's argument on that account was that it was speculative and unpersuasive. In my view, the defendant's submissions touched lightly upon this topic. However, absent a filed Notice of Appeal, it is not necessary to give further consideration to that argument.
I find that the defendant has not established the necessary pre-requisite circumstances to justify the imposition of a stay that would, to adopt the language of the authorities, deprive the plaintiff of the fruits of her victory whilst she waits out the 3 month period of currency of a holding appeal whilst the defendant considers whether or not it has, and should file arguable grounds of appeal.