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
[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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Details
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.