CSR Limited v Clydesdale

[2003] NSWCA 363

CITATION:	CSR Limited v. Clydesdale [2003] NSWCA 363
HEARING DATE(S):	Matter dealt with in Chambers
JUDGMENT DATE:	11 December 2003
JUDGMENT OF:	Meagher JA at 1; Hodgson JA at 1; Foster AJA at 1
DECISION:	1. Orders 1 and 2 made 21 November 2003 vacated. 2. Appeal allowed to the extent of substituting for the amount awarded to the respondent judgment in the sum of $974,240.70. 3. Respondent to pay appellant's costs of the appeal up to 11am on 21 May 2003, and to have a certificate under the Suitors' Fund Act if otherwise eligible. 4. Appellant to pay respondent's costs of the appeal from 11am on 21 May 2003 on an indemnity basis.
CATCHWORDS:	PRACTICE - APPEAL - COSTS - Offer of compromise by plaintiff respondent - Greater than amount of substituted verdict, but less than verdict plus interest at time of offer - Costs awarded to respondent.
PARTIES :	CSR Limited - appellant Kim Clydesdale - respondent
FILE NUMBER(S):	CA 41006/02
COUNSEL:	Mr. J.D. Hislop QC with Mr. G. Seib for appellant Mr. P. Hennessy SC with Ms. M. Kumar for respondent
SOLICITORS:	Johnstone Robinson Legal, Sydney for appellant Farrell Lusher, Wagga Wagga for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 52/01
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

CA 41006/02
DC 52/01

MEAGHER JA
HODGSON JA
FOSTER JA

Thursday 11 December 2003

CSR LIMITED V. CLYDESDALE

Judgment

(On Mathematical Calculations and Costs)

1 THE COURT: Pursuant to leave granted in the judgment of 21 November 2003, the respondent provided written submissions concerning mathematical calculations and costs. The appellant respondent, agreeing with the respondent as to one error in the mathematics, and making further submissions concerning mathematics and costs.

2 The submissions of the appellant concerning future superannuation entitlements are in our view substantive submissions and not mere matters of mathematical calculation, and we would not accede to them. The appellant accepts the respondent’s correction to the calculations, and so the sum to be substituted for the judgment of the primary judge is $974,240.70.

3 Since this is by way of substitution, it takes effect as at the date of the judgment of the primary judge, that is, as at 16 October 2002. As submitted by the respondent, interest increased the value of this judgment as at 20 May 2003 to $999,732.70, and as at 19 June 2003 to $1,003,005.52.

4 On 20 May 2003, the respondent served an offer of compromise in the following terms:

The Plaintiff offers to compromise the claim in the following manner:
1. The Appellant pay to the Respondent the sum of $975,000.
2. The Appellant pay the Respondent's costs in the Court below and in the Court of Appeal.

This offer is made in accordance with Part 22 Division 1 of the Supreme Court rules and shall remain open for a period of 28 days.

A copy of this offer of compromise has been served on the solicitors for the Appellant.

5 In our opinion, that offered to settle the matter on terms that there be payment of $975,000.00 to be made as at the date of acceptance of the offer, without interest, plus costs. In our opinion, having regard to the interest calculations referred to in par.[3], the result of the appeal is no less favourable to the respondent than the terms of this offer; and in our opinion the respondent should have the costs of the appeal, on an indemnity basis, from 11am on 21 May 2003. As for the costs of the appeal prior to that time, the appellant was justified in bringing the appeal, and should have those costs.

6 For those reasons, we make the following orders:

1. Orders 1 and 2 made 21 November 2003 vacated.
2. Appeal allowed to the extent of substituting for the amount awarded to the respondent judgment in the sum of $974,240.70.
3. Respondent to pay appellant’s costs of the appeal up to 11am on 21 May 2003, and to have a certificate under the Suitors’ Fund Act if otherwise eligible.
4. Appellant to pay respondent’s costs of the appeal from 11am on 21 May 2003 on an indemnity basis.
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Last Modified: 12/12/2003