Erect Safe Scaffolding (Australia) Pty Limited v Sutton & Anor (No 2)

The appeal and cross-appeal in *Erect Safe Scaffolding (Australia) Pty Limited v Sutton & Anor (No 2)* concerned a dispute regarding damages and costs. The primary dispute involved the quantum of damages awarded to the plaintiff, Erect Safe Scaffolding (Australia) Pty Limited, against the defendants, Mr Sutton and Australand Holdings Limited. The Court of Appeal was required to determine the correct amount of damages and the appropriate orders for costs, particularly in light of offers of compromise made by the parties.

The court was tasked with determining the correct amount of damages to be awarded, considering the plaintiff's entitlement to interest under section 101 of the *Civil Procedure Act*. Furthermore, the court had to assess the effectiveness of offers of compromise made under the Uniform Civil Procedure Rules, specifically whether an offer made to one party could be accepted by another, and whether an offer had been bettered by the offeror. The court also had to consider the implications of these offers on the award of indemnity costs.

The Court of Appeal allowed the appeal and cross-appeal in part, setting aside the trial judge's judgment and substituting a reduced verdict and judgment for the plaintiff. The court found that the original judgment had not properly accounted for interest, and the substituted judgment was to take effect from the date of the trial judge's original judgment. Regarding costs, the court made detailed orders, including that the plaintiff pay the second defendant's costs of certain grounds of appeal and corresponding District Court costs. The first defendant was ordered to pay the plaintiff's costs of the appeal from a specific date on an indemnity basis, as the offer of compromise made by the plaintiff had been bettered. Other costs orders were made on a standard basis, with specific provisions for notices of motion.