PRACTICE AND RULES OF COURT - PURPORTED ACCEPTANCE OF OFFER OF SETTLEMENT
Appeal by Defendants/Appellant against a determination of a Master of the Court that a purported offer by the Plaintiff/Respondent to settle its claim for a principal monetary sum and a specific sum for costs was not a valid offer capable of being accepted pursuant to 6 DCR 187 and 188 of the Rules of Court - the Plaintiff's offer to accept the sum of $40,000 inclusive of GST plus costs fixed in the sum of $3,500.00 was filed on the day the proceedings were commenced on 1 May 2008 - almost 3 years later on 9 February 2011, the Defendants purported to accept the offer pursuant to 6 DCR 188 - whether the offer met the description in 6 DCR 187 - whether power to permit withdrawal of offer nunc pro tunc - Rules of Court, 6 DCR 188, amended in 2007 to provide a costs penalty in 6 DCR 188 (6A) for a Plaintiff to accept a formal offer of settlement from a Defendant after a period of 14 days - no amendment to Rules where offer filed by a Plaintiff - query whether unintended differences between Plaintiffs and Defendants in Rule 6 DCR 188.
Held: Appeal allowed. The Plaintiff's Notice of Offer dated 1 May 2008, is compliant with regime under Rules of Court 6 DCR 187 and 188. Prima facie the Defendants are entitled to have judgment entered pursuant to Rule 6 DCR 188(5).
This is an Appeal instituted by the Defendants, David Hall and Joan…
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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Details
AGLC
Hall & Hall v Basbuild Pty Ltd [2013] SADC 132
Case
[2013] SADC 132
Decision Date
CaseChat Overview and Summary
In the District Court of South Australia, David and Joan Hall (the Appellants) appealed against a decision made by a Master of the Court. The Appellants sought a judgment against the Respondent, Basbuild Pty Ltd, for the construction of a residence on vacant land. The Respondent filed a formal offer of settlement for a principal monetary sum and a specific sum for costs on 1 May 2008. The Appellants accepted the offer almost three years later on 9 February 2011. The Master of the Court ruled that the Respondent's offer was not compliant with Rule 6 DCR 187, and that the Appellants' acceptance did not constitute a valid acceptance of the offer. The Appellants appealed against the Master's decision. The court had to determine whether the offer met the description in Rule 6 DCR 187, and whether the power to permit withdrawal of an offer nunc pro tunc existed. The court held that the Respondent's Notice of Offer was compliant with Rule 6 DCR 187, and was not ambiguous. The appeal by the Appellants was allowed, and the orders in paragraphs 1 and 3 of the orders made by the Master on 29 February 2012 were set aside. The matter was returned to the Master for further consideration.