New South Wales
Court of Appeal
CITATION: Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98 HEARING DATE(S): 24 March 2009
JUDGMENT DATE:
5 May 2009JUDGMENT OF: Beazley JA at 1; McColl JA at 2; Mathews AJA at 3 DECISION: (a) Grant leave to appeal. (b) Appellant to file the Notice of Appeal within 7 days. (c) Appeal allowed (d) Costs order made by Patten AJ on 7 May 2008 set aside and in lieu thereof order the applicant to pay 25% of the respondent’s costs of the trial on a party and party basis. (e) Reserve the question of the costs of the appeal. (f) Applicant to file and serve written submissions as to the costs of the appeal on or before 11 May 2009. (g) Respondent to file and serve written submissions as to the costs of the appeal on or before 18 May 2009. (h) Applicant to file and serve any written submissions in reply on or before 25 May 2009. (i) Written submissions referred to in paras (f) – (h) to be delivered to the Associate to Beazley JA at the time of, and in addition to, their filing. CATCHWORDS: COSTS – claim for work injury damages – court proceedings – costs governed by Workplace Injury Management and Workers Compensation Act 1998, s 346 and Workers Compensation Regulation 2003, rr 89-91, 94 – whether power to order costs to be paid on an indemnity basis – whether cl 110 or 113 of the Regulation confers a power to award costs on a basis other than party and party - COSTS – court proceedings to recover work injury damages – worker sues employer and principal contractor – mediation – offer of compromise – whether sufficient compliance with cl 89 and cl 94 of the Workers Compensation Regulation 2003 – whether offer to settle economic loss component of respondent’s claim constituted final offer to settle the claim against all defendants under cl 89 – whether sufficient for purposes of cl 94(a) if offer covers only economic loss component of claim – meaning of “the claim” in cl 94(a) – whether primary judge erred in ordering that respondent’s costs be paid on a party and party basis - WORDS AND PHRASES – “the claim” LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Interpretation Act 1987
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Uniform Civil Procedure Rules 2005
Workers Compensation Regulation 2003CATEGORY: Principal judgment CASES CITED: Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 PARTIES: Chubs Constructions Pty Ltd - Appellant
Sam Chamma - Respondent
FILE NUMBER(S): CA 40236 of 2008 COUNSEL: Mr S Campbell SC with Mr D P O’Dowd - Appellant
Mr P Semmler QC - RespondentSOLICITORS: Bartier Perry Solicitors- Appellant
CMC Lawyers - Respondent
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20252/05 LOWER COURT JUDICIAL OFFICER: Patten AJ LOWER COURT DATE OF DECISION: 7 May 2008 LOWER COURT MEDIUM NEUTRAL…
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- AGLC
- Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98
- Case
- [2009] NSWCA 98
- Decision Date
CaseChat Overview and Summary
Chubs Constructions Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a costs order made by Patten AJ. The dispute concerned the recovery of damages for a work injury, where the respondent had made an offer of compromise.
The primary legal issues before the Court of Appeal were whether the respondent's offer of compromise sufficiently complied with clauses 89 and 94 of the *Workers Compensation Regulation 2003* (NSW), and whether the primary judge erred in ordering that the respondent's costs be paid on a party and party basis. Specifically, the court considered whether an offer to settle only the economic loss component of the respondent's claim constituted a final offer to settle the entire claim against all defendants for the purposes of clause 89, and whether such an offer was sufficient for the purposes of clause 94(a).
The Court of Appeal allowed the appeal, finding that the offer of compromise did not sufficiently comply with the requirements of the *Workers Compensation Regulation 2003*. The court reasoned that "the claim" in clause 94(a) referred to the entire claim, not merely a component of it. Consequently, the costs order made by the primary judge was set aside. In lieu thereof, the court ordered that the applicant pay 25% of the respondent's costs of the trial on a party and party basis, reserving the question of the costs of the appeal.
The primary legal issues before the Court of Appeal were whether the respondent's offer of compromise sufficiently complied with clauses 89 and 94 of the *Workers Compensation Regulation 2003* (NSW), and whether the primary judge erred in ordering that the respondent's costs be paid on a party and party basis. Specifically, the court considered whether an offer to settle only the economic loss component of the respondent's claim constituted a final offer to settle the entire claim against all defendants for the purposes of clause 89, and whether such an offer was sufficient for the purposes of clause 94(a).
The Court of Appeal allowed the appeal, finding that the offer of compromise did not sufficiently comply with the requirements of the *Workers Compensation Regulation 2003*. The court reasoned that "the claim" in clause 94(a) referred to the entire claim, not merely a component of it. Consequently, the costs order made by the primary judge was set aside. In lieu thereof, the court ordered that the applicant pay 25% of the respondent's costs of the trial on a party and party basis, reserving the question of the costs of the appeal.
Orders
Orders of the court
(a) Grant leave to appeal. (b) Appellant to file the Notice of Appeal within 7 days. (c) Appeal allowed (d) Costs order made by Patten AJ on 7 May 2008 set aside and in lieu thereof order the applicant to pay 25% of the respondent's costs of the trial on a party and party basis. (e) Reserve the question of the costs of the appeal. (f) Applicant to file and serve written submissions as to the costs of the appeal on or before 11 May 2009. (g) Respondent to file and serve written submissions as to the costs of the appeal on or before 18 May 2009. (h) Applicant to file and serve any written submissions in reply on or before 25 May 2009. (i) Written submissions referred to in paras (f) - (h) to be delivered to the Associate to Beazley JA at the time of, and in addition to, their filing.
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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