George v Webb

Case [2012] NSWSC 86


Supreme Court


New South Wales

Medium Neutral Citation: George v Webb & ors [2012] NSWSC 86
Hearing dates:7 February 2012
Decision date: 07 February 2012
Jurisdiction:Equity Division
Before: Ward J
Decision:

Amendment to order for interest previously made under the slip rule. Costs orders made.

Catchwords:

PRACTICE AND PROCEDURE - operation of slip rule - Uniform Civil Procedure Rules 2005 (NSW) rule 36.17 - whether amendment to the date from which interest calculated falls within the operation of the slip rule - HELD - not within scope of slip rule

PRACTICE AND PROCEDURE - reopening of hearing - whether interests of justice require reopening of issue - where no suggestion that material previously unavailable - HELD - proper basis for reopening hearing after judgment not established

COSTS - offer of compromise - whether genuine element of compromise where offer of compromise by plaintiff gave up claim to interest on the principal sum claimed - HELD -offer involving genuine element of compromise and not derisory nor mere offer for defendant to surrender - order for indemnity costs granted

COSTS - Calderbank offers - basis for special costs sanctions being whether offeree's failure to accept offer in all the circumstances warrants departure from ordinary rule as to costs - where Calderbank offer by plaintiff gave up claim to both interest and costs - had issue arisen finding would have been that it was unreasonable for defendants to reject offer
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120
Barnes v Addy (1874) LR 9 Ch App 244
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Bennette v Cohen (No 2) [2009] NSWCA 162
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Calderbank v Calderbank [1975] 3 WLR 586
Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
Commonwealth of Australia v Gretton [2008] NSWCA 117
Computer Machinery Co Ltd v Drescher [1983] 1 WLR 1379; [1983] 3 All ER 153
DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251; (2004) 51 ACSR 555
East West Airlines Limited v Turner (No 2) [2010] NSWCA 159
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Falkner v Bourke (1990) 19 NSWLR 574
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hillier v Sheather (1995) 36 NSWLR 414
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Hungerfords v Walker (1989) 171 CLR 125
In re Swire; Mellor v Swire (1885) 30 ChD 239
Ivanhoe Gold Corporation Limited v Symonds (1906) 4 CLR 642
Lahoud v Lahoud [2011] NSWCA 405
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Meister v Hutchinson [1987] 10 NSWLR 525
Morgan v Johnson (1998) 44…

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AGLC
George v Webb [2012] NSWSC 86
Case
[2012] NSWSC 86
Decision Date

CaseChat Overview and Summary

George brought an action against Webb in the Supreme Court of New South Wales. The dispute involved the calculation of interest on a sum of money owed by Webb to George. The court was required to determine whether an amendment to the date from which interest was calculated was permissible under the slip rule of the Uniform Civil Procedure Rules 2005 (NSW) and whether the interests of justice required the reopening of the issue of interest. The court was also tasked with determining the appropriate costs order, including whether a genuine offer of compromise had been made.

The court found that the amendment to the date from which interest was calculated did not fall within the scope of the slip rule, which only permitted minor amendments to pleadings without the necessity of formal leave. The court held that the interests of justice did not require the reopening of the issue of interest, as there was no suggestion that material previously unavailable would have affected the outcome. Regarding costs, the court held that the plaintiff's offer of compromise, which relinquished the claim to interest on the principal sum, involved a genuine element of compromise and was not derisory or merely an offer for the defendant to surrender. The court granted an order for indemnity costs, finding that the defendants' failure to accept the plaintiff's offer was unreasonable in all the circumstances.

The court made orders that the interest would be calculated from the date specified in the original pleadings, denied the reopening of the issue of interest, and ordered the defendants to pay the plaintiff's costs on an indemnity basis. The court emphasised that the basis for special costs sanctions was whether the offeree's failure to accept the offer in all the circumstances warranted a departure from the ordinary rule as to costs.

Orders

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Background

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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