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JUDGMENT

1. THE COURT: On 5 July 2022, his Honour Judge Levy SC upheld a claim for damages for personal injury brought by the first respondent, Adam Liccardy, against the appellant, Daniel Payne trading as Sussex Inlet Pontoons, and another party, Derek Wayne Allred. [1] His Honour entered judgment against Mr Payne and Mr Allred in the amount of $464,773.25. His Honour ordered Mr Payne and Mr Allred pay Mr Liccardy's costs of the proceedings "on the ordinary basis". On 14 July 2022, his Honour amended the costs order so that costs were payable on an indemnity basis from 4 April 2022. This reflected an offer of compromise made by Mr Liccardy on that day in which he offered to settle the proceedings for $210,000.00.
2. Mr Payne appealed. Mr Allred did not file a notice of appeal but was made a respondent to the appeal. He did not participate in the appeal. On 20 April 2023, this Court published its reasons for judgment (Payne trading as Sussex Inlet Pontoons v Liccardy [2023] NSWCA 73). Mr Payne's appeal was upheld, at least in part. A majority of the Court found that the damages awarded to Mr Liccardy should be reduced by 30%. The Court ordered the parties to file and serve agreed orders, or failing agreement, competing draft orders and submissions in support, including as to costs.
3. The active parties both filed written submissions annexing short minutes of orders on the afternoon of 5 May 2023. The appellant's submissions noted that "proposed draft orders are annexed" and stated: "The key difference between the appellant's proposed orders and those of the first respondent is paragraph 5(b), concerning the costs of the appeal."
4. Leaving aside the question of costs, the primary order sought (proposed order 4) read as follows: "Vacate order 1 of the District Court dated 5 July 2022 and in lieu thereof enter judgment for the first respondent in the sum of $325,341.28."
5. The first respondent, Mr Liccardy, stated in his written submissions at par 3: "Relevantly, following receipt of the reasons for judgment, the appellant and first respondent have agreed on the following orders: … (d) vacate order 1 of the District Court dated 5 July 2022 and in lieu thereof enter judgment for the first respondent in the sum of $325,341.28 together with post-judgment interest on that amount from 2 August 2022 to the date of payment."
6. It is clear that order 4 was not in an agreed form or, if it was, the appellant's submissions failed to reflect that fact. Further, the form of order 4 proposed by the first respondent is not appropriate.
7. The primary judgment of the Court delivered on 20 April 2023 included the following passage in relation to the formulation of orders: [2] "70 It follows that I propose that the appeal be allowed and that orders be made providing for a reduction in the judgment sum by 30%. As interest will have accrued since the time of judgment, the parties should agree the appropriate orders or, if unable to do so, file proposed orders on the assumption that final orders will be entered on 19 May 2023. The proposed orders and the short submissions accompanying them should address costs. The costs order at first instance appears to reflect the effect of an offer of compromise which might be affected by the outcome of this appeal. The Court will deal with costs and the form of any final orders on the papers."
8. The first respondent may have been misled by the assumption that interest will have accrued since the time of judgment. The Court was then (and still is) unaware of whether any payment has been made, or whether a stay is in place, and, if so, the terms of the stay. Interest may or may not have accrued on all or part of the judgment. In any event, it is not appropriate for this Court to order payment of an amount which has been neither agreed nor assessed. (The fact that the first respondent was unable to state the amount of interest suggests that it was not agreed and had not then been calculated.)
9. In the circumstances, the Court will give judgment for the amount which has been agreed (and which it could readily have calculated without assistance from the parties), and back-date the order to take effect from the date of the District Court judgment, namely 5 July 2022.
10. Two other matters should be noted. First, one of the agreed orders was that the "First Respondent's damages be reduced by 30% by reason of contributory negligence". That statement reflects the findings made by the Court but is not an appropriate form of order. The Court's findings about the reduction of Mr Liccardy's damages are reflected in the reduced amount of the judgment sum.
11. Second, one of the agreed orders was that the Court "confirm" the costs order made by Judge Levy SC on 14 July 2022. That is not an appropriate form of order. Instead, the Court can either not disturb that order or remake it. The Court will take the former approach.
12. In relation to the costs of the appeal, Mr Liccardy seeks his costs of the appeal on an indemnity basis. He contends that the substituted judgment to be entered in his favour ($325,341.28) still exceeds the amount of his offer of compromise of 4 April 2022. It is submitted that the "whole of the appeal proceedings and the hearing below are the result of [Mr Payne's] failure to accept an offer which is 55% less than the amount awarded by the Court".
13. Mr Payne submitted that his appeal was successful, being confined as it was to the construction and application of s 50 of the Civil Liability Act 2002 (NSW). He contended that Mr Liccardy should pay all of his costs of the appeal on the ordinary basis.
14. In Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160 at [10], Bell P (as his Honour then was), Macfarlan and Leeming JJA described the "the standard approach" in circumstances where no separate Calderbank offer is made in relation to appeal proceedings as being that regard may be had to offers made at first instance, but the costs of the appeal will usually be determined by reference to the issues in, and the outcome of, the appeal (see also McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James (No 2) [2016] NSWCA 260 at [31] and [33]; Uniform Civil Procedure Rules 2005 (NSW), r 51.49; Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 at [72]; Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [40]─[42]).
15. The offer of compromise made on behalf of Mr Liccardy on 4 April 2022 was not renewed during the currency of the appeal. Consistent with the authorities just noted, there is no reason why Mr Payne's refusal of that offer would provide a basis to make an award of indemnity costs of the appeal in favour of Mr Liccardy, although it is relevant to a consideration of what other costs order should be made. In relation to the issues in, and the outcome of, the appeal, Mr Payne was successful in contending that s 50 of the Civil Liability Act was engaged. However, he was not completely successful as he contended that s 50(2) warranted no damages being awarded, whereas a majority of the Court held that damages should be reduced by 30% (and the other member of the Court, Brereton JA, found they should be reduced by 25%). In those circumstances, the appropriate order is a costs order in favour of Mr Payne that reflects the extent of his success; i.e. Mr Liccardy should pay 30% of Mr Payne's costs of the appeal.
16. Accordingly, the Court's orders are: 1. The name of the appellant be amended to Daniel Payne trading as Sussex Inlet Pontoons. 2. Appeal allowed in part. 3. Set aside order 1 made by the District Court on 5 July 2022 and, in lieu thereof, give judgment for the first respondent in the sum of $325,341.28, such judgment to take effect from 5 July 2022. 4. Appeal otherwise dismissed. 5. The first respondent pay 30% of the appellant's costs of the appeal assessed on the ordinary basis.