Davis v Swift (No 2)

Case [2015] NSWCA 137

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Davis v Swift (No 2) [2015] NSWCA 137
Hearing dates:On the papers
Decision date: 21 May 2015
Before: Meagher JA at [1];
Leeming JA at [32];
Adamson J at [33]
Decision:

1.The respondent pay the appellant’s costs of the proceedings in the District Court up to and including 26 April 2013 assessed on the ordinary basis.
2.The appellant pay the respondent’s costs of the proceedings in the District Court after 26 April 2013 assessed on the ordinary basis.
3.The respondent pay 50% of the appellant’s costs of the appeal.

Catchwords:

COSTS – Offer of Compromise – compliance with Uniform Civil Procedure Rules, r 20.26 (as in force in November 2012) – whether Offer sufficiently indicated that it was inclusive of “interim payments” made under ss 83 and 84A of the Motor Accidents Compensation Act 1999 (NSW)

COSTS – Calderbank Letter – whether a genuine offer of compromise – whether pre-trial Calderbank offer justified departure from the general rule that appeal costs are primarily determined by the issues in and outcomes of the appeal
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3(1), 98, 101,
Motor Accidents Compensation Act 1999 (NSW), ss 83, 84A
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.2, 51.49
Cases Cited: Baresic v Slingshot Holdings Pty Ltd & Anor (No 2) [2005] NSWCA 160
Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trusts v Thompson (No 2) [2012] NSWCA 420
Cheng v Geussens (No 2) [2014] NSWCA 254
Commonwealth of Australia v Gretton [2008] NSWCA 117
Davis v Swift [2014] NSWCA 458; 69 MVR 375
Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72
Leichhardt Municipal Council v Green [2004] NSWCA 341
Marshall v Megna (No 2) [2013] NSWCA 456
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Taheri v Vitek (No 2) [2014] NSWCA 344
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; 84 NSWLR 311
Category:Costs
Parties: Carolyn Davis (Appellant)
Deborah Swift (Respondent)
Representation:

Counsel:
R McIlwaine SC with R E Quickenden (Appellant)
P R Cummings SC (Respondent)

Solicitors:
Brazel Moore Lawyers (Appellant)
Moray & Agnew (Respondent)
File Number(s):2013/200886
 Decision under appeal 
Court or tribunal:
District Court of NSW
Citation:
[2013] NSWDC 99
Date of Decision:
4 June 2013
Before:
Gibson DCJ
File Number(s):
2009/332923

Judgment

  1. MEAGHER JA: The Court delivered judgment in this appeal on 22 December 2014: Davis v Swift [2014] NSWCA 458; 69 MVR 375. At that time orders were made for the exchange of written submissions in the event that the parties could not agree as to the costs of the appeal and those in the District Court. The parties could not agree and those submissions have been received.

The outcome of the appeal

  1. The appellant’s (plaintiff) claim to damages for injuries sustained in a motor accident was dismissed by the primary judge. In this Court the appellant challenged…

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AGLC
Davis v Swift (No 2) [2015] NSWCA 137
Case
[2015] NSWCA 137
Decision Date

CaseChat Overview and Summary

In *Davis v Swift (No 2)*, the parties were the appellant and the respondent, and the dispute concerned the assessment of costs in both the District Court proceedings and the subsequent appeal. The matter came before the Court of Appeal of New South Wales, constituted by Meagher and Leeming JJA and Adamson J.

The primary legal issues before the Court of Appeal were whether an offer of compromise made by the respondent complied with rule 20.26 of the Uniform Civil Procedure Rules (NSW) by sufficiently indicating it was inclusive of interim payments made under the *Motor Accidents Compensation Act 1999* (NSW), and whether a pre-trial *Calderbank* letter constituted a genuine offer of compromise that justified a departure from the usual rule for determining appeal costs based on the appeal's outcome.

The Court determined that the offer of compromise was not sufficiently clear in its indication that it included the interim payments, and therefore did not comply with the requirements of rule 20.26. Regarding the *Calderbank* letter, the Court found that it did not represent a genuine offer of compromise in the circumstances, and thus did not provide a basis for deviating from the ordinary principles governing the costs of an appeal.

Consequently, the Court ordered that the respondent pay the appellant’s costs in the District Court up to and including 26 April 2013, assessed on the ordinary basis. The appellant was ordered to pay the respondent’s costs in the District Court after that date, also assessed on the ordinary basis. Finally, the respondent was ordered to pay 50% of the appellant’s costs of the appeal.

Orders

Orders of the court

1.The respondent pay the appellant’s costs of the proceedings in the District Court up to and including 26 April 2013 assessed on the ordinary basis.

2.The appellant pay the respondent’s costs of the proceedings in the District Court after 26 April 2013 assessed on the ordinary basis.

3.The respondent pay 50% of the appellant’s costs of the appeal.

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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