Dungowan Manly Pty Ltd v McLaughlin (No 2)

[2012] NSWCA 258

Court of Appeal

New South Wales

Case Title:

Dungowan Manly Pty Ltd v McLaughlin (No 2)

Medium Neutral Citation:

[2012] NSWCA 258

Hearing Date(s):

On the papers

Decision Date:

22 August 2012

Jurisdiction:

Before:

Bathurst CJ at [1]; 
Beazley JA at [2]; 
Macfarlan JA at [3]

Decision:

(1) The orders of this Court of 19 June 2012 are corrected, pursuant to UCPR 36.17, so that the date of 26 February 2010 is substituted for the date of 16 March 2010 wherever appearing in orders 3, 4 and 7.

(2) Judgment for the respondents against the appellant for $632,038.95 (inclusive of interest of $118,909.50).

(3) The Court notes that these orders do not affect the balance of orders made:

a) at first instance on 26 February 2010, including order 3 as amended on 20 April 2010 that the Defendant pay the Plaintiffs $14,769.97 or the obligation of the Plaintiffs to pay interest thereon pursuant to s 101 Civil Procedure Act 2005.

b) on 19 June 2012 concerning the appeal, cross-appeal and costs (otherwise than as set out above).

(4) The Court notes the agreement of the parties that the appellant is not entitled to levy the respondents for any contribution to payment of the damages, interest or costs awarded to them.

[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 - consequential orders - application for indemnity costs - no issue of principle

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Texts Cited:

Category:

Consequential orders

Parties:

Dungowan Manly Pty Ltd (Appellant)
Patrick David McLaughlin (First Respondent)
Jennifer Therese McLaughlin (Second Respondent)

Representation

- Counsel:

Counsel:
D A Priestley (Appellant)
P Roberts SC/S J Burchett/S Alexandre-Hughes (Respondents)

- Solicitors:

Solicitors:
Pikes Lawyers (Appellant)
Turner Freeman (Respondents)

File number(s):

CA 2010/74510

Decision Under Appeal

- Court / Tribunal:

- Before:

Ward J

- Date of Decision:

- Citation:

McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 187; McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306 (costs)

- Court File Number(s)

SC 2006/258866

Publication Restriction:

JUDGMENT

1. BATHURST CJ: I agree with Macfarlan JA.

2. BEAZLEY JA: I agree with Macfarlan JA.

3. MACFARLAN JA: The Court delivered judgment in this appeal on 19 June 2012, leaving the amount of interest to be included in the judgment in favour of the McLaughlins to be determined by agreement of the parties or, failing agreement, by the Court, following lodgement of submissions.

4. The parties have agreed upon this and various other matters. They are in dispute only concerning an application of the McLaughlins for their appeal costs from 25 May 2010 to be paid on the indemnity basis. Their application is founded upon the terms of a written offer of settlement dated 18 May 2010 from their solicitors to the Company's solicitors. The offer was expressed to be "without prejudice save as to costs" and to remain open until 6.00 pm on 25 May 2010. One of the terms of the offer was that the Company pay the McLaughlins a sum of $250,000 within 14 days of accepting the offer.

5. By its written submissions, the Company gives a number of reasons why its non-acceptance of the offer does not justify the making of an indemnity costs order against it. It suffices to say that at least the following matter relied upon by the Company warrants rejection of the McLaughlins' application for indemnity costs.

6. The sum of $250,000 sought by the McLaughlins under their offer significantly exceeded the amount of $214,769.97 that had been awarded to them by the primary judge in damages. When the offer was made on 18 May 2010, the Company had filed its appeal but the McLaughlins had not filed a cross-appeal seeking an increase in the damages awarded by the primary judge. Such a cross-appeal was not filed until 14 July 2010. Until then, it was not in my view unreasonable for the Company to reject the offer as the grounds upon which the McLaughlins sought an increase in damages had not been identified. The McLaughlins did not suggest in any reply to the Company's submissions that this information had been communicated earlier.

7. Accordingly I would not vary the order for costs made by the Court on 19 June 2012.

8. The following orders should however be made by consent:

   (1) The orders of this Court of 19 June 2012 are corrected, pursuant to UCPR 36.17, so that the date of 26 February 2010 is substituted for the date of 16 March 2010 wherever appearing in orders 3, 4 and 7.

   (2) Judgment for the respondents against the appellant for $632,038.95 (inclusive of interest of $118,909.50).

   (3) The Court notes that these orders do not affect the balance of orders made:

   a) at first instance on 26 February 2010, including order 3 as amended on 20 April 2010 that the Defendant pay the Plaintiffs $14,769.97 or the obligation of the Plaintiffs to pay interest thereon pursuant to s 101 Civil Procedure Act 2005.

   b) on 19 June 2012 concerning the appeal, cross-appeal and costs (otherwise than as set out above).

   (4) The Court notes the agreement of the parties that the appellant is not entitled to levy the respondents for any contribution to payment of the damages, interest or costs awarded to them.

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