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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
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.