SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Forge v Rewers (No 2) |
Citation: | [2017] ACTSC 273 |
Hearing Date: | 4 August 2017 |
DecisionDate: | 20 September 2017 |
Before: | Mossop J |
Decision: | Orders 3 and 4 made on 21 July 2017 are deleted and the following order made: “The second defendant is to pay the plaintiff’s costs of the proceedings on a solicitor and client basis.” |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – Costs – offers of compromise – whether offer open for “a period that is reasonable in the circumstances” – whether Court should “order otherwise” so as to displace default costs consequences under rule 1010 of the Court Procedures Rules 2006 (ACT) |
Legislation Cited: | Court Procedures Amendment Rules 2014 (No 3) (ACT) Court Procedures Rules 2006 (ACT), rr 1002(5), 1010, 1010(2), 1010(2)(a), 1010(2)(b)(ii)(B), 1011(2), 1011(2)(a), 1012(2), 1304, Part 2.10 Uniform Civil Procedure Rules 2005 (NSW), rr 20.25, 20.26, 20.27, 20.28, 20.29, 20.30, 20.31, 20.32, 42.13, 42.14, 42.14(2)(b), 42.15, 42.15A, 42.16, 42.17 |
Cases Cited: | Forge v Rewers [2017] ACTSC 179 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 153; 175 LGERA 189 |
Parties: | Craig Forge (Plaintiff) Edward Marion Rewers (First Defendant) Insurance Australia Limited trading as NRMA Insurance (ACN 000016722) (Second Defendant) |
Representation: | Counsel Ms L Baker (Plaintiff) Mr W M Fitzsimmons (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore (Defendants) | |
File Number: | SC 271 of 2016 |
MOSSOP J:
Introduction
This is a costs application arising from a judgment given on 21 July 2017: see Forge v Rewers [2017] ACTSC 179. The orders of the Court were:
1. Judgment be entered for the plaintiff against the second defendant in the sum of $231,618.
2. The usual order as to interest.
3. The second defendant is to pay the plaintiff’s costs.
4. Order 3 does not take effect for a period of 14 days and, if either party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
Pursuant to order 4 the plaintiff sought to have the matter relisted to seek a more favourable costs order. The relevant defendant for the purposes of this application is the second defendant because any judgment must be given against the second defendant and not against the first defendant: Road Transport (Third Party Insurance) Act 2008 (ACT), s 151(4).
The plaintiff relied upon the making of two offers of compromise shortly before the hearing. They were…
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- AGLC
- Forge v Rewers (No 2) [2017] ACTSC 273
- Case
- [2017] ACTSC 273
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether an offer of compromise was open for a period that was reasonable in the circumstances and whether the Court should order otherwise to displace the default costs consequences under rule 1010. The Court was required to determine the appropriate interpretation of the phrase “a period that is reasonable in the circumstances” and how it should be applied in the context of offers of compromise.
The Court found that the offer of compromise was open for a period that was reasonable in the circumstances. It concluded that the phrase should be interpreted in a manner that reflects the ordinary meaning of the words used. The Court held that the offer was open for a period that was reasonable, having regard to the nature of the proceedings and the circumstances of the case. The Court also found that it was not necessary to order otherwise to displace the default costs consequences under rule 1010. The Court emphasised the importance of the party making the offer to clearly specify the terms of the offer, including the period for which it is open.
As a result, the Court deleted Orders 3 and 4 made on 21 July 2017 and substituted a new order, stating that the second defendant is to pay the plaintiff’s costs of the proceedings on a solicitor and client basis. This outcome reflects the Court’s interpretation of the reasonable period for an offer of compromise and the appropriate application of rule 1010 of the Court Procedures Rules 2006 (ACT).
Orders
Orders of the court
Orders 3 and 4 made on 21 July 2017 are deleted and the following order made: “The second defendant is to pay the plaintiff’s costs of the proceedings on a solicitor and client basis.”
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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