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Ainger v Coffs Harbour City Council (No 2)

Ainger v Coffs Harbour City Council (No 2)

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Case Copied 16 August 2007 27 min read

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New South Wales

Court of Appeal

CITATION: Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): On the papers

JUDGMENT DATE:
16 August 2007

JUDGMENT OF: Mason P at 1; McColl JA at 2; Hunt AJA at 46

DECISION: 1. Costs of the claimant of the first trial to be paid by the opponent on a solicitor/client basis; 2. No order as to the costs of the motion.

CATCHWORDS: COSTS – costs of appeal – offer of compromise made by plaintiff before trial under DCR Pt 39A r 25 – plaintiff sought indemnity costs for trial and appeal – whether offer relevant to costs of appeal –neither DCR or SCR apply – costs order in discretion of the court – court considers circumstances at time offer made – no fresh offer made between trial and appeal – discretion to order costs of appeal on an indemnity basis turned on demonstrating unreasonable or delinquent conduct on the part of the party against whom order sought – no such conduct demonstrated – motion for indemnity costs of appeal refused - COSTS – costs of trial – application of UCPR to offer of compromise made under DCR Pt 39A r 25 – costs awarded on a solicitor/client basis - COSTS – offers of compromise – relevance of change in legal outlook to reasonableness of rejection of offer – principles.

LEGISLATION CITED: Civil Procedure Act 2005
Suitors’ Fund Act 1951
District Court Rules 1973
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CASES CITED: Ainger v Coffs Harbour City Council [2005] NSWCA 424
Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160
Benham v Gambling [1941] AC 157
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512
Brymount Pty Limited t/a Watson Toyota v Cummins and Anor; Young Shire Council v Cummins and Anor (No 2) [2005] NSWCA 69
Coombes v Roads and Traffic Authority (RTA) (No 2) [2007] NSWCA 70
Cumper v Pothecary [1941] 2 KB 58
Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404
Hillier v Sheather (1995) 36 NSWLR 414
Horseshoe Pastoral Company Pty Ltd v Murray Smith (trading as South Coast Tile & Slate Company) (Court of Appeal, 7 November 1995, unreported)
Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Maricic v Dalma Formwork (Australia) Pty Ltd (No 2) [2006] NSWCA 237
Moore v Woodforth (No 2) [2003] NSWCA 46
Morgan v Johnson (1998) 44 NSWLR 578
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Mutual Life and Citizens’ Assurance Co Ltd v Evatt [1968] HCA 74; (1968) 122 CLR 556
Newcastle City Council v Lindsay [2004] NSWCA 198
NSW Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
Oshlack v…

Grounds of appeal

[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

Case: [2007] NSWCA 212
Decision Date: 16 August 2007

CaseChat Overview and Summary

In *Ainger v Coffs Harbour City Council (No 2)*, the plaintiff sought indemnity costs for both the trial and the appeal, relying on an offer of compromise made before the trial pursuant to the *District Court Rules 1972* (NSW) Pt 39 r 25. The defendant opposed this application. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the pre-trial offer of compromise was relevant to the costs of the appeal, and if so, whether it warranted an order for indemnity costs for the appeal. The court also considered the application of the *Uniform Civil Procedure Rules 1999* (NSW) to an offer made under the repealed District Court Rules and the principles governing the reasonableness of rejecting an offer of compromise in light of a subsequent change in legal outlook.

The Court of Appeal held that neither the District Court Rules nor the Supreme Court Rules applied to the offer of compromise in the context of the appeal. The court determined that an order for indemnity costs of the appeal was a matter for the court's discretion and required demonstration of unreasonable or delinquent conduct by the party against whom the order was sought. As no such conduct was demonstrated, the motion for indemnity costs of the appeal was refused. However, the court ordered that the costs of the first trial be paid by the opponent on a solicitor/client basis, reflecting the application of the UCPR to the offer of compromise made under the former District Court Rules. There were no orders as to the costs of the motion itself.

Orders

Orders of the court

1. Costs of the claimant of the first trial to be paid by the opponent on a solicitor/client basis;

2. No order as to the costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	On the papers
JUDGMENT DATE:	16 August 2007
JUDGMENT OF:	Mason P at 1; McColl JA at 2; Hunt AJA at 46
DECISION:	1. Costs of the claimant of the first trial to be paid by the opponent on a solicitor/client basis; 2. No order as to the costs of the motion.
CATCHWORDS:	COSTS – costs of appeal – offer of compromise made by plaintiff before trial under DCR Pt 39A r 25 – plaintiff sought indemnity costs for trial and appeal – whether offer relevant to costs of appeal –neither DCR or SCR apply – costs order in discretion of the court – court considers circumstances at time offer made – no fresh offer made between trial and appeal – discretion to order costs of appeal on an indemnity basis turned on demonstrating unreasonable or delinquent conduct on the part of the party against whom order sought – no such conduct demonstrated – motion for indemnity costs of appeal refused - COSTS – costs of trial – application of UCPR to offer of compromise made under DCR Pt 39A r 25 – costs awarded on a solicitor/client basis - COSTS – offers of compromise – relevance of change in legal outlook to reasonableness of rejection of offer – principles.
LEGISLATION CITED:	Civil Procedure Act 2005 Suitors’ Fund Act 1951 District Court Rules 1973 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Ainger v Coffs Harbour City Council [2005] NSWCA 424 Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160 Benham v Gambling [1941] AC 157 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 Brymount Pty Limited t/a Watson Toyota v Cummins and Anor; Young Shire Council v Cummins and Anor (No 2) [2005] NSWCA 69 Coombes v Roads and Traffic Authority (RTA) (No 2) [2007] NSWCA 70 Cumper v Pothecary [1941] 2 KB 58 Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404 Hillier v Sheather (1995) 36 NSWLR 414 Horseshoe Pastoral Company Pty Ltd v Murray Smith (trading as South Coast Tile & Slate Company) (Court of Appeal, 7 November 1995, unreported) Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Maricic v Dalma Formwork (Australia) Pty Ltd (No 2) [2006] NSWCA 237 Moore v Woodforth (No 2) [2003] NSWCA 46 Morgan v Johnson (1998) 44 NSWLR 578 Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 Mutual Life and Citizens’ Assurance Co Ltd v Evatt [1968] HCA 74; (1968) 122 CLR 556 Newcastle City Council v Lindsay [2004] NSWCA 198 NSW Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 Oshlack v…