Ackerman v Morgan

Case [2019] NSWSC 1250


Supreme Court


New South Wales

Medium Neutral Citation: Ackerman v Morgan [2019] NSWSC 1250
Hearing dates: 5 November 2018
Date of orders: 20 September 2019
Decision date: 20 September 2019
Jurisdiction:Common Law
Before: Walton J
Decision:

The Court makes the following orders and directions:

 

(1) Leave to appeal refused with respect to grounds 1, 3 and 5.

 

(2) Leave to appeal granted with respect to grounds 2, 4 and 6.

 

(3) Appeal upheld with respect to grounds 2, 4 and 6.

 

(4) Order number 2 of the court below be set aside.

 

(5) The defendant to pay the costs of the plaintiff (defendant in the Court below) on:

 

(a) an ordinary basis up to 22 May 2017; and

 

(b) an indemnity basis from 23 May 2017.

 

(6) Costs reserved as to the costs of the appeal.

 

(7) The plaintiff is to file and serve written submissions, together with any evidence, with respect to costs within 14 days of the publication of this judgment.

 

(8) The defendant is to file and serve written submissions in reply, together with any evidence, with respect to costs within 14 days of the receipt of the plaintiff’s submissions.

 

(9) Any application for oral hearing should be included within the written submissions provided in accordance with (7) and (8) above.

 (10) If costs of the appeal are settled then the plaintiff should bring in short minutes of order reflecting the same, which shall be dealt with administratively in Chambers.
Catchwords: APPEAL – appeal from Local Court – s 40(2)(c) of the Local Court Act 2007 (NSW) – amended grounds of appeal – whether her Honour erred in failing to apply the principles applicable to offers to settle and offers made pursuant to the principles set out in Calderbank v Calderbank – whether her Honour erred in failing to apply the Uniform Civil Procedure Rules 2005 and the principles applicable to offers of compromise – principles applicable to Calderbank offers – offer of compromise – compliance with r 20.26 – presumptive entitlement to indemnity costs in r 42.15A – relevant principles as to appeal against costs orders – rules in relation to offers of compromise operate differently to the principles which apply to Calderbank offers – questions of leave – appeal upheld – orders and directions
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Local Court Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ada Evans Chambers P/L v Santisi [2014] NSWSC 538
Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780
Be Financial Pty Ltd v Das [2012] NSWCA 164
Black v Lipovac [1998] FCA 699
Bogle v Kasan [2013] NSWSC 295
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Chapmans Ltd v Yandell [1999] NSWCA 361
Collins v The Queen (1975) 133 CLR 120; [1975] HCA 60
Commonwealth v Gretton [2000] NSWCA 118
Coulter v The Queen (1988)…

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AGLC
Ackerman v Morgan [2019] NSWSC 1250
Case
[2019] NSWSC 1250
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant, Ackerman, against the decision of the respondent, Morgan, in the Local Court. The appellant sought to appeal the Local Court's decision on the basis of alleged errors in the application of the principles governing offers to settle and offers made under Calderbank v Calderbank. The appeal was heard in the Supreme Court of New South Wales.

The court was required to determine whether the Local Court judge had erred in her application of the principles applicable to offers to settle, particularly those under Calderbank, and the Uniform Civil Procedure Rules 2005. A central issue was whether the Local Court had correctly applied the principles concerning offers of compromise, particularly in relation to the presumptive entitlement to indemnity costs under r 42.15A. Additionally, the court needed to consider the distinct nature of the rules governing offers of compromise versus Calderbank offers and the procedural requirements for appealing costs orders.

The Supreme Court found that the Local Court judge had indeed erred in her application of the relevant principles. The court held that the principles applicable to Calderbank offers and the rules for offers of compromise, while related, operate differently. The Local Court had failed to properly distinguish between these principles, leading to an incorrect application of the law. Consequently, the appeal was upheld, and the orders made by the Local Court were set aside. The court provided directions for the reconsideration of the case in light of its findings.

The final orders of the court included setting aside the decision of the Local Court and directing the parties to reconsider the case in accordance with the principles correctly applied. The court also noted that the appellant was entitled to indemnity costs for the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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