Uin v Coles Supermarkets Australia Pty Ltd

[2022] NSWSC 180

Supreme Court

New South Wales

Medium Neutral Citation:

Uin v Coles Supermarkets Australia Pty Ltd [2022] NSWSC 180

Hearing dates:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   The Court grants leave to the plaintiff to withdraw her acceptance of the defendant's offer of compromise on 20 January 2022.

(2)   No order as to costs.

Catchwords:

CIVIL PROCEDURE — offer of compromise — where plaintiff accepted offer of compromise — where leave sought to withdraw acceptance — where grant of leave not opposed by defendant — where leave granted

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 20.28

Category:

Procedural rulings

Parties:

Alice Uin (Plaintiff)
Coles Supermarkets Australia Pty Ltd (Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
M Siebold (Defendant)

Solicitors:
Self-represented (Plaintiff)
McCulloch & Buggy (Defendant)

File Number(s):

2019/390185

Judgment: EX Tempore

1. The current proceedings were commenced by Alice Uin (the plaintiff) in the District Court and were subsequently transferred to this Court. Directions were made for the conduct of the matter and the matter was set down for hearing. Coles Supermarkets Australia Pty Ltd (the defendant) served an offer of compromise on the plaintiff. The offer of compromise was sent to the plaintiff's former solicitors, Gerard Malouf & Partners, on 13 December 2021 and was expressed to be open for acceptance until 20 January 2022.

2. On 20 December 2021 the plaintiff's former solicitors filed a notice of ceasing to act. On 29 December 2021 there was further correspondence from the plaintiff to the defendant regarding the potential settlement of the matter. On 20 January 2022, being the date on which the offer of compromise was to lapse at 5pm, the plaintiff sent an email to the defendant at 4.32pm in which she said that she will accept the offer and referred to the deadline of 5pm that day.

3. The effect of the acceptance of the offer was to resolve the proceedings. However, on 2 February 2022, the plaintiff in an email to Mr Siebold, the solicitor with carriage of the matter on behalf of the defendant, informed him that she had second thoughts about accepting the offer of compromise and she was very concerned about the effect of the acceptance of the offer on her Centrelink benefits. She then purported to withdraw her acceptance of the offer and indicated to Mr Siebold that she wished to pursue the proceedings in this Court, as originally arranged.

4. Mr Siebold responded by acknowledging receipt of her email. He drew her attention to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 20.28, which makes provision for withdrawal of acceptance of an offer of compromise, relevantly, if the Court gives leave. He copied the portion of the UCPR in his email to Ms Uin in order that she could seek the Court's leave to withdraw the offer of compromise. Mr Siebold offered to list the matter for directions before the Registrar in order that her application for leave to withdraw her acceptance could be determined. Further, Mr Siebold indicated to the plaintiff that his client, the defendant, would not oppose the grant of leave. He also reminded her that it was necessary to continue to prepare the matter for hearing.

5. The assistance which Mr Siebold gave to the plaintiff and to the Court in this matter is to be commended, and it accords with what the Court expects of practitioners, who are Officers of the Court.

6. In accordance with directions made by the Court, Mr Siebold filed and served an affidavit regarding the application for leave, to which the plaintiff responded. It is apparent from the plaintiff's affidavit and from what she told me in court today that she bitterly regrets her acceptance of the offer of compromise. Whilst it is important, as a matter of principle, that proceedings can be resolved by the acceptance of an offer of compromise, the provisions of UCPR r 20.28 make it clear that leave may be granted by the Court to withdraw an acceptance of an offer.

7. I am persuaded that it is appropriate to permit the plaintiff to withdraw her acceptance in the present proceedings. At the time she accepted the offer, she was no longer represented by solicitors (as referred to above). She communicated her change of heart, or change of mind, to the solicitors for the defendant relatively soon after having accepted the offer of compromise. Furthermore, and of significant importance, the defendant does not oppose the grant of leave.

8. I confirm that the plaintiff has indicated to me her understanding that by continuing with the proceedings she may receive a result better than the offer of compromise, worse than the offer of compromise or the same as the offer of compromise. In these circumstances I am satisfied that she appreciates the risk she runs in continuing to prosecute the proceedings, but that this is something that she wants to do because she wants to litigate her claim.

9. In these circumstances, I am satisfied that it is in the interests of justice that leave to withdraw acceptance of the offer of compromise be granted.

Orders

10. For these reasons I make the following orders:

1. The Court grants leave to the plaintiff to withdraw her acceptance of the defendant's offer of compromise on 20 January 2022.

2. No order as to costs.

**********