Estate of Virgona v De Lautour (No 2)
[2007] NSWCA 323
•19 November 2007
New South Wales
Court of Appeal
CITATION: Estate of the Late J J Virgona by its Executors v De Lautour (No 2) [2007] NSWCA 323 HEARING DATE(S): On written submissions
JUDGMENT DATE:
19 November 2007JUDGMENT OF: Hodgson JA at 1; Ipp JA at 2; Young CJ in Eq at 16 DECISION: The Respondent pay the appellant's costs of the District Court proceedings on an ordinary basis until 4 October 2005 and on an indemnity basis thereafter. The respondent should pay the appellant's costs of the appeal on the ordinary basis. LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)
Pt 20 r 20.26
Pt 42 r 42.15ACASES CITED: Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69
Diamond v Simpson (No 2) [2003] NSWCA 78
Estate of the Late J J Virgona by its Executors v De Lautour [2007] NSWCA 282
Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404
Fotheringham v Fotheringham (No 2) (1999) 46 NSWLR 194
Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 422
Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) [2007] NSWCA 194PARTIES: Estate of the Late Joseph James Virgona by its Executors Rosemary Marie Virgona, Robert Thomas Virgona and Kathleen Constance Quinlivan (Appellant)
Rachael May De Lautour (Respondent)FILE NUMBER(S): CA 40620/06 COUNSEL: B Toomey QC/T Berbarian (Appellant)
G Barry Hall QC/A Campbell (Respondent)SOLICITORS: Ebsworth & Ebsworth (Appellant)
Gerard Malouf & Partners (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 10312/00 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 25/08/06
05/09/06
CA 40620/06
DC 10312/00Monday 19 November 2007HODGSON JA
IPP JA
YOUNG CJ in Eq
1 HODGSON JA: I agree with Ipp JA.
2 IPP JA: The respondent brought proceedings in the District Court for damages for negligence against the appellant. The trial judge upheld the respondent’s claim. By judgment delivered on 18 October 2007 ([2007] NSWCA 282) this Court upheld the appellant’s appeal, set aside the judgment of the trial judge, granted judgment in favour of the appellant, dismissed the respondent’s claim with costs and ordered the respondent to pay the appellant’s costs of the appeal. Thereafter, leave was granted to the appellant to file written submissions with regard to the costs order. Both parties have filed their written submissions.
3 The appellant seeks an order, in accordance with Pt 42 r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), that the respondent pay the appellant’s costs of the District Court proceedings on an ordinary basis until 4 October 2005 and on an indemnity basis thereafter. In seeking such relief the appellant relies upon an offer of compromise dated 4 October 2005 made in terms of Pt 20 r 20.26 of the UCPR. By this offer, the appellant offered to settle the respondent’s claim on the basis that “[t]here be a verdict for the [appellant] against the [respondent]” and “[t]he [appellant] and the [respondent] each pay their own costs.” The offer was open for acceptance by the respondent for a period of 28 days.
4 In her written submissions the respondent concedes that the appellant had a prima facie entitlement, in terms of Pt 42 r 42.15A, for an order for indemnity costs in relation to the costs of the District Court proceedings. She disputes that it had any entitlement to the costs of the proceedings in this Court.
5 As regards the costs of the District Court proceedings, the respondent contends, firstly, that her rejection of the offer of compromise was not unreasonable for various reasons based on factual matters relating to the issues at trial. None of these arguments, however, answers the conclusions to which this Court arrived in [2007] NSWCA 282 in upholding the appeal and they are not persuasive.
6 Secondly, the respondent draws attention to the fact that she sustained serious injuries and this was not challenged in the Court of Appeal. The respondent asserts, “[t]he Offer conveyed in the Offer of Compromise would not have left [her] with any remedy from her cause of action”. These matters, while correct, are entirely irrelevant to the reasonableness or otherwise of her rejection of the offer of compromise.
7 As regards the costs of the appeal, the respondent draws attention to the fact that, during the appeal, the appellant did not press the grounds of appeal relating to the trial judge’s credit findings, damages and contributory negligence. She asserts that she “was put to considerable cost in relation to meeting grounds of negligence that were ultimately abandoned”. The respondent asserts that, for these reasons, the appropriate order would be that she pay the appellant’s costs of the appeal on an ordinary basis. It is only on these bases that the respondent disputes the order sought by the appellant in regard to the costs of the appeal.
8 I am not persuaded by the arguments advanced by the respondent in relation to the costs incurred after the District Court trial. The appellant was substantially successful in the appeal. The attitude of senior counsel for the appellant in pressing only the grounds he did was entirely appropriate and limited the time taken for the appeal.
9 Nevertheless, there is a further consideration that, in my view, must be taken into account. That is, the fact that the offer of compromise expired almost two years before the trial judge delivered judgment.
10 An offer made before trial can have costs consequences for an appeal (see Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 at 410 per Gleeson CJ and Priestley JA; Fotheringham v Fotheringham (No2) (1999) 46 NSWLR 194 at 205 per Stein JA; Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 422; Diamondv Simpson (No2) [2003] NSWCA 78), but only as an element in the Court's general discretion.
11 In Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) [2007] NSWCA 194, I said (at [8] to [9]):
- “In Brymount [ Pty Ltd v Cummins (No 2) [2005] NSWCA 69], Beazley JA said (at [29]):
- ‘[G]iven that the compromise offers substantially pre-dated proceedings in this Court ... coupled with the substantial judgment the respondent received in the District Court, the appellants should have advanced subsequent offers in the period between the trial and appeal if they wished to secure their claim for indemnity costs of the appeal.’
- The Court in Brymount did not order indemnity costs.
- In my opinion, the same considerations as those that influenced the Court in Brymount apply in this case. Moreover, of particular significance is the fact that, according to its terms, the Calderbank offer of 28 June 2006 lapsed on 30 June 2006 and was not thereafter renewed. As the offer had so lapsed (prior to the conclusion of the trial), it was not possible for the appellants to accept it thereafter. In particular, it could not have been accepted on the launching of the appeal or thereafter. On that basis alone, it seems to me, the offer could play no part in the exercise of the discretion to order indemnity costs in regard to the appeal.”
12 What I said in Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) has relevance in this case, even though I was there dealing with a Calderbank offer. The issue in both instances is, I have noted, a discretionary one.
13 In my view, the length of time since the initial offer of compromise was made, the fact that the respondent was successful at trial, and the time that elapsed between the trial and the appeal are factors which, together, in fairness, required the appellant to renew the offer after the trial if it wished to rely on an offer of compromise to claim the costs of appeal on an indemnity basis.
14 Accordingly, I would reject the appellant’s claim for indemnity costs after the delivery of judgment in the District Court trial.
15 I propose that an order be made that the respondent pay the appellant’s costs of the District Court proceedings on the ordinary basis until 4 October 2005 and on an indemnity basis thereafter. The respondent should pay the appellant’s costs of the appeal on the ordinary basis.
16 YOUNG CJ in Eq: I agree with Ipp JA.
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