PRACTICE AND PROCEDURE – costs – offer of compromise – offer to forego costs – offer made before significant costs incurred – whether any element of compromise
THE COURT: On 10 June 2015 the Court dismissed the appeal in this matter, with costs ([2015] NSWCA 157). The appeal had been initiated by the filing of a Notice of Appeal on 28 August 2014 and had been heard on 30 April 2015.
By Notice of Motion filed on 22 June 2015 the respondent to the appeal, Ms Bonny Lui, sought an order, in lieu of the costs order made on 10 June 2015, that the appellant pay her costs of the appeal on the ordinary basis until 18 September 2014 and on an indemnity basis thereafter. The Registrar directed that the parties file written submissions and that Ms Lui’s motion be determined on the papers. Ms Lui filed written submissions but the appellant did not. By email dated 16 July 2015 the appellant’s solicitor advised the Registrar that she “does not oppose the applicant filing submissions and leaving the matter to the discretion of the court”.
In support of her motion, Ms Lui relies on the fact that she and her daughter (who was, but did not remain, a respondent to the appeal) offered to compromise the appeal on the basis that there be judgment in their favour with no order as to costs.
Ms Lui relies on r 42.15A(2), as modified by r 51.47(2), of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The effect of these rules is that a party to an…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Fabre v Lui (No 2) [2015] NSWCA 312
Case
[2015] NSWCA 312
Decision Date
CaseChat Overview and Summary
In *Fabre v Lui (No 2)*, the New South Wales Court of Appeal considered an appeal concerning an offer of compromise made by the defendant, Mr Lui, to the plaintiff, Mr Fabre. The dispute revolved around whether the offer, which proposed that Mr Fabre forego any claim for costs, constituted a valid offer of compromise under the relevant rules of court, particularly given that it was made before significant costs had been incurred by Mr Fabre.
The central legal issue before the Court of Appeal was whether Mr Lui's offer, which stipulated that Mr Fabre should forgo his entitlement to costs, could be characterised as an "offer of compromise" for the purposes of the rules governing offers of compromise. This required the Court to determine if such an offer, made at a stage where the plaintiff had not yet incurred substantial legal expenses, contained any element of compromise as contemplated by the rules.
The Court of Appeal held that an offer to forego costs, particularly when made at an early stage of proceedings before significant costs have been incurred, does not necessarily constitute a genuine offer of compromise. The Court reasoned that the purpose of an offer of compromise is to facilitate settlement by proposing a resolution that involves concessions from both parties. An offer that merely requires the other party to abandon a claim for costs, without offering any substantive concession on the underlying dispute, may lack the essential element of compromise. Consequently, the Court dismissed the Notice of Motion.