Atkinson v Zey

[2008] NSWCA 30

New South Wales

Court of Appeal

CITATION:

ATKINSON v ZEY; ZEY v ATKINSON [2008] NSWCA 30

HEARING DATE(S):

10 March 2008

 
JUDGMENT DATE: 

13 March 2008

JUDGMENT OF:

Basten JA at 1; Handley AJA at 23

DECISION:

In Mr Atkinson’s application, matter no. CA 40324/07:

(1) Extend time for service of the holding summons filed on 25 May 2007 to the date of receipt by the respondent’s legal representative.

(2) Grant leave to appeal in respect of the costs order of 27 April 2007.

(3) Direct the applicant to file the notice of appeal within 7 days.

(4) Allow the appeal and set aside the order made in the District Court on 27 April 2007 and in lieu thereof:

(a) pursuant to Schedule 6, cl 5(2) of the Civil Procedure Act 2005, dispense with the requirements of r 42.15 of the Uniform Civil Procedure Rules in relation to the cost consequences of the offer of compromise made by the defendant in the District Court on 1 August 2005;
(b) order the defendant to pay the plaintiff’s costs in respect of the claim in the District Court up to and including 1 August 2005 and the plaintiff to pay the defendant’s costs in respect of the claim thereafter, assessed in each case on a party and party basis.

(5) Order the respondent to pay the costs of the applicant in this Court.

(6) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

In Ms Zey’s application, matter no. 40837 of 2006:

(1) Dismiss the application for leave to appeal.

(2) Order the applicant to pay the respondent’s costs to the date of service of the notice of discontinuance filed on 21 September 2007.

(3) Dismiss the respondent’s motion seeking indemnity costs.

(4) Order the respondent to pay the applicant’s costs of the motion for indemnity costs.

CATCHWORDS:

APPEAL – leave to appeal – notice of discontinuance filed – no need for leave – liability of applicant for costs to date of discontinuance - COSTS – offer of compromise – comparison with judgment – inclusion of interest to date of offer – no part of costs to be included - COSTS – offer of compromise – change in costs consequences flowing from non-acceptance – application of rules applicable at date of offer – power to otherwise order - PRACTICE AND PROCEDURE – replacement of District Court Rules by Uniform Civil Procedure Rules – power to dispense with requirements of uniform rules – Civil Procedure Act 2005 (NSW) Sch 6, cl5 - PRACTICE AND PROCEDURE – summons filed out of time – power to extend time repealed – effect on existing liability – Interpretation Act 1987 (NSW), s 30 – dispensing power – Civil Procedure Act, ss 14 and 16

LEGISLATION CITED:

Civil Procedure Act 2005 (NSW), ss 14, 16, Sch 6, cl 5 District Court Rules 1973 (NSW), Parts 19A, 39A, rr 12, 25 Interpretation Act 1987 (NSW), s 30 Property (Relationships) Act 1984 (NSW), s 20 Supreme…