Council of the City of Canterbury v Milich

The Council of the City of Canterbury (the applicant) sought leave to appeal a costs order made by Davies J in the Common Law Division. The dispute concerned an offer of compromise made by the respondent, Mr Milich, to the applicant. The offer stipulated payment of $320,000 and "plaintiff's costs", which the applicant argued was not compliant with the Uniform Civil Procedure Rules (UCPR) as it was not "exclusive of costs".

The primary legal issue before the Court of Appeal was whether the respondent's offer of compromise was validly made under the UCPR, specifically in relation to the wording concerning costs. A secondary issue, though not central to the final decision, involved whether the applicant should have been granted leave to challenge a recent five-judge decision on offers of compromise, considering the desirability of certainty and whether an arguable reason for a different conclusion had been overlooked.

The Court of Appeal applied the principles established in *Whitney v Dream Developments Pty Ltd* [2013] NSWCA 188, which held that an offer to pay a sum of money and "costs" is generally interpreted as an offer to pay that sum plus the costs incurred up to the date of the offer. The Court found no compelling reason to reconsider the five-judge decision, noting that reasonable minds could differ on construction but that the relevant rule had since been amended. Consequently, the Court dismissed the application for leave to appeal.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the proceedings in the Court of Appeal.