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Aukuso v Tahan (No 2)

Aukuso v Tahan (No 2)

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Case Copied 7 December 2018 36 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Aukuso v Tahan [No 2] [2018] NSWCA 302
Hearing dates: On the papers
Decision date: 07 December 2018
Before: Macfarlan JA at [1]
Meagher JA at [2]
Simpson AJA at [6]
Decision:
1. Notice of Motion filed by the appellant on 20 June 2018 dismissed.
2. Appellant to pay the respondent’s costs of the Notice of Motion.

Catchwords:
COSTS – offers of settlement – where appellant made offer of compromise – where offer not accepted – where outcome substantially similar to the offer made – whether proper basis for departure from the prima facie rule
PROCEDURE – judgments and orders – setting aside judgment or order after entry – motion to set aside order filed more than 14 days after orders entered – whether court has jurisdiction to set aside or vary order where application made outside 14 day time limit – whether applicant notified court of motion within time limit – whether appropriate for court to dispense with rule prescribing form of notice for motion – Civil Procedure Act 2005 (NSW), s 14; Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)
Category: Costs
Parties: Taelase Aukuso (Appellant)
Hana Tahan (Respondent)
File Number(s): 2017/336371
Decision under appeal

File Number(s):

2017/336371

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 December 2011 the respondent was seriously injured in a motor vehicle accident. In the District Court the appellant was found solely responsible for the accident. The respondent was awarded $700,000 in damages.

The appellant appealed to the Court of Appeal. Two months before the hearing date the appellant made an offer of compromise in the sum of $350,000 in accordance with the Uniform Civil Procedure Rules 2005 (“UCPR”) r 20.26. At that time relevant appeal books (those containing the oral and documentary evidence) had not been served on the respondent. They were served between two and six days before the offer of compromise expired. The offer was not accepted within the time specified.

The Court of Appeal upheld the appeal in part, finding the respondent contributorily negligent, set aside the District Court judgment and in lieu thereof gave judgment to the respondent for $350,000. The Court ordered the parties to pay their own costs of the appeal. That reflected precisely the offer that had been made in the offer of compromise.

A week after judgment was entered the appellant wrote to the respondent indicating an intention to apply to the Court for variation of the costs order by reference to the offer of compromise. Two weeks later the appellant communicated by email with the Registrar of the Court seeking leave to file an application for variation of the costs order. The respondent was copied into this email.

19 days after judgment was entered the appellant filed a notice of motion seeking a variation of the…

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: [2018] NSWCA 302
Decision Date: 07 December 2018

CaseChat Overview and Summary

The appellant, Aukuso, sought to set aside a judgment entered against them in favour of the respondent, Tahan. The dispute concerned an application to set aside an order made by the court. The appeal was heard by Macfarlan and Meagher JJA, and Simpson AJA.

The primary legal issues before the court were whether it had jurisdiction to set aside or vary an order after the expiry of the 14-day time limit prescribed by rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), and if so, whether it was appropriate to dispense with the rule prescribing the form of notice for such a motion. A related issue concerned the appellant's entitlement to costs, given that an earlier offer of compromise made by the appellant was not accepted but the subsequent outcome was substantially similar to that offer.

The court determined that it did not have jurisdiction to set aside or vary the order as the application was filed outside the 14-day time limit stipulated by rule 36.16. The court found that the applicant had not notified the court of the motion within the prescribed time limit, and therefore, it was not appropriate to dispense with the rule requiring the form of notice for the motion. Regarding costs, the court noted that the prima facie rule regarding costs was not displaced by the fact that the outcome was similar to the appellant's offer of compromise, particularly in light of the failure of the application to set aside the judgment.

Consequently, the court dismissed the Notice of Motion filed by the appellant on 20 June 2018 and ordered the appellant to pay the respondent’s costs of that motion.

Orders

Orders of the court

1. Notice of Motion filed by the appellant on 20 June 2018 dismissed.

2. Appellant to pay the respondent’s costs of the Notice of 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.

Medium Neutral Citation:	Aukuso v Tahan [No 2] [2018] NSWCA 302
Hearing dates:	On the papers
Decision date:	07 December 2018
Before:	Macfarlan JA at [1] Meagher JA at [2] Simpson AJA at [6]
Decision:	1. Notice of Motion filed by the appellant on 20 June 2018 dismissed. 2. Appellant to pay the respondent’s costs of the Notice of Motion.
Catchwords:	COSTS – offers of settlement – where appellant made offer of compromise – where offer not accepted – where outcome substantially similar to the offer made – whether proper basis for departure from the prima facie rule PROCEDURE – judgments and orders – setting aside judgment or order after entry – motion to set aside order filed more than 14 days after orders entered – whether court has jurisdiction to set aside or vary order where application made outside 14 day time limit – whether applicant notified court of motion within time limit – whether appropriate for court to dispense with rule prescribing form of notice for motion – Civil Procedure Act 2005 (NSW), s 14; Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW)
Category:	Costs
Parties:	Taelase Aukuso (Appellant) Hana Tahan (Respondent)
File Number(s):	2017/336371
Decision under appeal	File Number(s): 2017/336371