Amaca Pty Ltd v Hicks (No 2)

[2011] NSWCA 360

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Amaca Pty Ltd v Hicks (No 2) [2011] NSWCA 360

Hearing dates:

On the papers

Decision date:

25 November 2011

Before:

Basten JA at 1;
Whealy JA at 1;
Handley AJA at 1.

Decision:

Vary the orders made on 16 September 2011 to read:

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs to be assessed -

(a) up to and including 11 February 2011, on the ordinary basis, and

(b) on and from 12 February 2011, including the costs of the present motion, on an indemnity basis.

[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:

APPEAL - civil - costs - offer of compromise by respondent in respect of appeal - application of Uniform Civil Procedure Rules 2005 (NSW), Parts 20 and 42 to appeal proceedings - UCPR rr 51.47 and 51.48

COSTS -offer of compromise -compliance with Uniform Civil Procedure Rules 2005 (NSW) r 20.26 - claim for costs on indemnity basis - whether offered reduction in judgment constituted a "compromise"

WORDS & PHRASES - "offer of compromise"

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14, 51.47, 51.48; Pt 20, Div 4

Cases Cited:

Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Category:

Consequential orders

Parties:

Amaca Pty Ltd - Appellant
Grahame John Hicks - Respondent

Representation:

Counsel:

Mr Williams/Mr J L Sharpe - Appellant
Mr P Semmler QC/Mr S Tzouganatos - Respondent
Solicitors:

Ellison Tillyard Callanan - Appellant
Turner Freeman - Respondent

File Number(s):

CA 2010/424786

 Decision under appeal 

Jurisdiction:

9115

Before:

Kearns J

File Number(s):

DDT 55 of 2010

Judgment

1. JUDGMENT of the COURT delivered by BASTEN JA : The principal judgment in this matter was delivered on 16 September 2011. The appeal was dismissed with costs. Upon the delivery of judgment, the respondent applied for costs to be awarded on an indemnity basis, though no date was specified. The respondent was invited, in the absence of agreement, to file a motion seeking the order proposed. That was done. The appellant was allowed 28 days to respond, but did not avail itself of that opportunity.

1. On 30 November 2010, the respondent, who suffers from asbestosis, was awarded damages by the Dust Diseases Tribunal ("the Tribunal") in the amount of $354,423.19. A notice of appeal was filed on 1 February 2011. On 11 February 2011 the respondent filed an offer of compromise stated to be made in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 20.26. According to the offer, the respondent would have accepted $340,000 in lieu of the damages awarded, with no variation of the costs order made by the Tribunal. Though not expressly so stated, the effect of the offer was to forego interest on any unpaid moneys in accordance with the rules with respect to post-judgment interest. The offer remained open for 28 days.

1. Having held the judgment he obtained in the Tribunal, the respondent has bettered the offer by an amount of $14,423 and any post-judgment interest which would have accrued (the quantum of which is unknown and can be disregarded).

1. It is not in doubt that Div 4 of Pt 20 of the UCPR applies to proceedings in this Court: r 51.47. For the purposes of Pt 20, a reference therein to a "plaintiff" is a reference to "an initiating party" in this Court: r 51.47(2)(c). However, somewhat confusingly, when it comes to assessing the costs consequences of non-acceptance of an offer, a reference in Part 42 to the plaintiff is treated as a reference to the person who was the plaintiff in the court below: r 51.48(1)(d). Accordingly, the costs consequences in the present case are identified in r 42.14. Mr Hicks having obtained a judgment "no less favourable" to him than the terms of his offer, he is entitled, unless the Court otherwise orders, to costs assessed on an indemnity basis from the beginning of the day following the day on which the offer was made: r 42.14(2).

1. The only issue to be determined is whether the offer did indeed involve any element of compromise, being a discount of less than 5% of the judgment: Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [9]. In Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721, a case in which a plaintiff, responding to an appeal, offered to accept an amount $6,090 less than her judgment, being a discount of approximately 2.5% on the total payment awarded, the Court noted that, from the point of view of the respondent, the diminution was "real and not trivial or contemptuous": at 725B. The Court assessed the matter in terms of the discretion not to award indemnity costs, a discretion which it declined to exercise in all the circumstances.

1. In the present case, the offer should be accepted as involving an element of compromise. In the absence of any submissions from the appellant as to why the ordinary rule would not apply, the order sought by the respondent should be made.

1. The respondent asked that the order cover the costs of the present application. The conduct of the appellant in not conceding the point when judgment was delivered was not unreasonable. It was, however, accorded a generous period (28 days) in which to respond to the application. It failed within the time provided to file any response. In the circumstances, there is no reason why the respondent's order should not extend to the costs of the present application.

1. The Court varies the orders made on 16 September 2011 to read as follows:

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs to be assessed -

(a) up to and including 11 February 2011, on the ordinary basis, and

(b) on and from 12 February 2011, including the costs of the present motion, on an indemnity basis.

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