Woollahra Municipal Council v Juric (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION: Woollahra Municipal Council v Juric (No. 2) [2004] NSWCA 102

FILE NUMBER(S):
40791/03

HEARING DATE(S): On the papers

JUDGMENT DATE: 01/04/2004

PARTIES:
Woollahra Municipal Council (Claimant)
Emma Juric (Opponent)

JUDGMENT OF: Sheller JA Giles JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7608/02

LOWER COURT JUDICIAL OFFICER: Gamble ADCJ

COUNSEL:
J.E. Maconachie QC/S.P.W. Glascott (Claimant)
C.A. Evatt/J.C. Henness (Opponent)

SOLICITORS:
Phillips Fox (Claimant)
Andrew Fegent & Co (Opponent)

CATCHWORDS:
COSTS - offer of compromise - application for indemnity costs in relation to application for leave to appeal. (D)

LEGISLATION CITED:
Supreme Court Rules 1970 (NSW) Pt 52A r 22(4)

DECISION:
The Court varies the order made on 22 March 2004 by substituting for the costs order an order that the Claimant pay the Opponent's costs of the application for Leave to Appeal assessed on an indemnity basis from 23 September 2003 and on a party and party basis on and prior to that day.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40791/03
DC 7608/02
SHELLER JA
GILES JA
McCOLL JA
Thursday, 1 April 2004

WOOLLAHRA MUNICIPAL COUNCIL v Emma JURIC (No. 2)

Judgment on Costs

THE COURT: On 22 March 2004 the Court dismissed the application for leave to appeal in this matter with costs. Counsel for the opponent, Mr Evatt then sought a special order for costs. He sought indemnity costs in respect of the District Court proceedings as well as an order for indemnity costs of the appeal based on the service of an offer of compromise.
Mr Evatt conceded that the Court of Appeal order for indemnity costs in respect of the District Court proceedings was novel. Mr Maconachie QC who appeared for the applicant was unaware of the position concerning any offer of compromise. In those circumstances the Court asked the parties to make their written submissions on these points.
Those submissions have now been received. The opponent has not pressed the application for indemnity costs in the District Court proceedings. She does seek an order pursuant to Pt 52A r 22(4) that the claimant pay her costs of the application for leave to appeal assessed on an indemnity basis from 23 September 2003 and on a party and party basis on and prior to that date.
The claimant conceded that the opponent had served the offer of compromise. It did not otherwise make any submissions in response to the opponent’s submissions in support of her application for indemnity costs.
The application for leave to appeal concerned a judgment of Gamble ADCJ who on 15 August 2003 awarded the plaintiff $29,551 in respect of the claimant’s breach of its duty of care to her.
The claimant filed and served a holding summons for Leave to Appeal and on 11 September 2003 filed and served an Ordinary Summons for Leave to Appeal together with the White Book.
On 23 September 2003 the opponent served on the solicitors for the complainant an offer of compromise in the sum of $26,600 plus costs. The offer of compromise was made in accordance with Pt 22 of the Supreme Court Rules. The claimant did not accept the offer of compromise.
The opponent submits that the offer was a true compromise in that she offered to accept 10% less than her original verdict.
The effect of the order of the Court of Appeal dismissing the application for Leave to Appeal is that the original verdict of $29,551 stands.
In our opinion this is a case in which it is appropriate that the opponent receive her costs on an indemnity basis.
Accordingly, the Court varies the order made on 22 March 2004 by substituting for the costs order an order that the Claimant pay the Opponent’s costs of the application for Leave to Appeal assessed on an indemnity basis from 23 September 2003 and on a party and party basis on and prior to that day.

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LAST UPDATED: 01/04/2004

Woollahra Municipal Council (the Opponent) and Mr Juric (the Claimant) were parties to proceedings concerning an application for leave to appeal. The dispute before the Court related to the basis upon which costs should be awarded for the application for leave to appeal.

The central legal issue before the Court was whether the Claimant should be ordered to pay the Opponent's costs of the application for leave to appeal on an indemnity basis, or on a party and party basis. This question arose in the context of an offer of compromise made by the Opponent.

The Court determined that the Opponent was entitled to an order for indemnity costs. This decision was based on the fact that the Opponent had made an offer of compromise on 23 September 2003, and the Claimant had failed to obtain a more favourable outcome than that offer in the subsequent proceedings. The Court applied the principle that where a party makes a reasonable offer of compromise which is not accepted, and the other party subsequently fails to achieve a better result, the offering party is generally entitled to recover their costs on an indemnity basis from the date of the offer.

The Court varied the previous costs order, directing that the Claimant pay the Opponent's costs of the application for leave to appeal assessed on an indemnity basis from 23 September 2003, and on a party and party basis for the period prior to that date.

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