Archer v Archer (No 2) - [2000] NSWCA 315

CITATION: Archer v Archer No 2 [2000] NSWCA 315

FILE NUMBER(S): CA 40455/99

HEARING DATE(S): 16 March 2000

JUDGMENT DATE:
9 November 2000

PARTIES :

Una Evelyn Archer (First Appellant)
Ernest Robert Archer (Second Appellant)
Trevor Robert Archer (Respondent)

JUDGMENT OF: Handley JA at 1; Beazley JA at 1; Fitzgerald JA at 1

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : 2040/95

LOWER COURT
JUDICIAL OFFICER : Windeyer J

COUNSEL: Appellants: B Coles QC/ P Walsh
Respondent: J A Trebeck

SOLICITORS: Appellants: Peter Adams & Co
Respondent: Garden & Montgomerie by their city agents Turner Whelan

CATCHWORDS: indemnity costs - offer of compromise - must be capable of acceptance

CASES CITED:
Oxlade v Gosbridge Pty Limited (No 2) [1999] NSWCA 165

DECISION: Appeal allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40455/99
EQ 2040/95

HANDLEY JA
BEAZLEY JA
FITZGERALD JA
Thursday, 9 November 2000

ARCHER v ARCHER (NO 2)
JUDGMENT

1    THE COURT: The Court has heard and determined an appeal brought by Mrs Archer against the dismissal of her claim for equitable relief brought against her son in respect of her property previously owned jointly by herself and her husband. The Court has, by majority, dismissed that appeal.
2    Mrs and Mr Archer have also appealed against Windeyer J’s order for costs, which included an order that they pay the respondent’s costs on an indemnity basis from the date of expiry of the offer of compromise.
3    The respondent’s claim for indemnity costs was made first on the basis of an unaccepted offer of compromise, and secondly, because the appellant had relied on a document found by his Honour to be a forgery, thus causing substantial time being unnecessarily spent on both trials.
4    His Honour held:

“I consider that the offer [of compromise] made was a genuine one. No doubt, having in mind the great expense which would be involved if the action proceeded to trial, it was an offer which justified careful consideration by the plaintiffs, particularly these plaintiffs who have now been found to have put forward a case or, at least, Mrs Archer has, supported by a document, which I found was falsely concocted to support their case causing considerable time and effort to be expended to arrive at the correct date of the signing of the relevant documents and to establish the falsity of that document …”

5    His Honour noted that it had been submitted on behalf of Mr Archer Snr that he should not be penalised by an order for indemnity costs as he had not put forward the forged document. His Honour held however:

“… it is failure to accept that offer [of compromise] which justifies the order for indemnity costs. Both plaintiffs must share responsibility for this.”

6    His Honour ordered therefore that “costs of the first trial after 18 May 1995 be on the indemnity basis. Costs of the retrial be on the indemnity basis”. His Honour had…

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.

Continue reading Archer v Archer (No 2)

Details

AGLC: Archer v Archer (No 2) [2000] NSWCA 315
Case: [2000] NSWCA 315
Decision Date: 9 November 2000

CaseChat Overview and Summary

Archer v Archer (No 2) concerned an appeal to the New South Wales Court of Appeal regarding an award of indemnity costs. The dispute arose from an offer of compromise made by the respondent, which the appellant had failed to accept. The primary judge had awarded indemnity costs to the respondent on the basis that the offer of compromise had not been bettered by the appellant at trial.

The central legal issue before the Court of Appeal was whether the offer of compromise made by the respondent was valid and therefore capable of forming the basis for an award of indemnity costs. Specifically, the court had to determine if the offer was sufficiently clear and certain to be accepted by the appellant.

The Court of Appeal held that the offer of compromise was not valid because it was ambiguous and lacked the necessary certainty to be capable of acceptance. The court reasoned that for an offer to be effective in triggering indemnity costs, it must be clear and unambiguous, leaving no room for doubt as to its terms. As the offer was found to be deficient in this regard, it could not serve as a basis for ordering indemnity costs.

The appeal was allowed, and the order for indemnity costs made by the primary judge was set aside.

Orders

Orders of the court

Appeal allowed

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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CITATION:	Archer v Archer No 2 [2000] NSWCA 315
FILE NUMBER(S):	CA 40455/99
HEARING DATE(S):	16 March 2000
JUDGMENT DATE:	9 November 2000
PARTIES :	Una Evelyn Archer (First Appellant) Ernest Robert Archer (Second Appellant) Trevor Robert Archer (Respondent)
JUDGMENT OF:	Handley JA at 1; Beazley JA at 1; Fitzgerald JA at 1

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	2040/95
LOWER COURT JUDICIAL OFFICER :	Windeyer J

COUNSEL:	Appellants: B Coles QC/ P Walsh Respondent: J A Trebeck
SOLICITORS:	Appellants: Peter Adams & Co Respondent: Garden & Montgomerie by their city agents Turner Whelan
CATCHWORDS:	indemnity costs - offer of compromise - must be capable of acceptance
CASES CITED:	Oxlade v Gosbridge Pty Limited (No 2) [1999] NSWCA 165
DECISION:	Appeal allowed