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 earlier ordered that Mr and Mrs Archer pay the defendant’s costs of the first trial. It is apparent that his Honour intended the order for indemnity costs to complement the earlier order.

7    However, in our opinion, his Honour’s discretion in ordering indemnity costs was based upon a wrong principle.

8    An offer of compromise must be capable of acceptance by each party to whom it is addressed, although an offer of compromise can be made interdependent upon acceptance by another party: Oxlade v Gosbridge Pty Limited (No 2) [1999] NSWCA 165. Here the offer of compromise was made to the parties jointly, although their causes of action were several, and the offer was therefore not capable of individual acceptance. In our opinion therefore, there was no basis for the making of an order for indemnity costs.

9    Accordingly, we propose the following orders in relation to the appeal on costs:

(i) Appeal allowed;

(ii) Set aside the orders of the trial judge in respect of costs of both trials;

(iii) Order that the appellants pay the costs of the first trial;

(iv) Order that the first appellant (Mrs Archer) pay the costs of the second trial;

(iv) Order that the respondent pay the costs of this appeal but have a certificate under the Suitor’s Fund Act 1951 (NSW) if so qualified.