GIO General Limited v Allen

[2002] NSWCA 333

NEW SOUTH WALES COURT OF APPEAL

CITATION:     GIO General Limited v. Allen [2002]  NSWCA 333

FILE NUMBER(S):
40860/02

HEARING DATE(S):    30 September 2002

JUDGMENT DATE:      30/09/2002

PARTIES:
GIO General Limited - claimant
Kenneth Douglas Allen - opponent

JUDGMENT OF:        Handley JA Hodgson JA    

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     DC 1297/98

LOWER COURT JUDICIAL OFFICER:   Sorby DCJ

COUNSEL:
Mr. R. Toner SC with P. Regattieri for claimant
Mr. P. Biscoe QC with Dr. A.S. Bell for opponent

SOLICITORS:
Cutler Hughes & Harris, Sydney for claimant
Abbott Tout, Sydney for opponent

CATCHWORDS:
CONTRACT - Offer said to be open until specified time - Offer withdrawn before that time, but then accepted - Whether contract made
PROCEDURE
COSTS - Calderbank offer - Said to be open until specified time - Offer withdrawn before that time, but then accepted - Whether settlement agreement made.

LEGISLATION CITED:

DECISION:
Summons for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40860/02
DC   1297/98

HANDLEY JA
HODGSON JA

Monday 30 September 2002

GIO GENERAL LIMITED  V.  ALLEN

Judgment

1. HODGSON JA: On 3 March 1998 the claimant commenced proceedings in the District Court against the opponent, seeking indemnity from the opponent pursuant to section 151Z(1)(d) of the Workers Compensation Act on the basis that the opponent had been negligent in causing injury to a worker for which the claimant had made payments pursuant to that Act. The matter was set down for trial in the District Court commencing 23 September 2002.

2. On 19 September 2002 the opponent made an offer of $175,000 inclusive of costs to settle the matter, in a letter which concluded with the following paragraph:

   This offer is made in accordance with the principles in Calderbank v Calderbank and is expressed to be open until 5.00pm on Friday 20 September 2002. You are hereby put on notice that the defendant intends to rely on this letter in any argument in respect of costs and interest in this matter.

3. On that day and the following day, the claimant made three counter offers, the third of which was rejected by the opponent at 10.30am on 20 September 2002; and at the same time the opponent purported to withdraw the offer made on the previous day.  At 11.32am on 20 September 2002, the claimant purported to accept the offer. 

4. On 23 September 2002, the claimant filed a notice of motion seeking leave to amend the statement of claim to one for damages for breach of a contract constituted by the events I have outlined, in circumstances where the opponent denied the existence of any contract.

5. That application was heard by Sorby DCJ on 25 September 2002, and he dismissed it with costs.  The claimant seeks leave to appeal from that order. 

6. In substance the primary judge held that, in accordance with ordinary contract principles, the offer made on 19 September 2002 could be withdrawn before acceptance, and once it was withdrawn it was no…