CITATION: HANCOCK v ARNOLD; DODD v ARNOLD (NO. 2) [2009] NSWCA 19
FILE NUMBER(S): 40619/07 40639/07
HEARING DATE(S): On written submissions
JUDGMENT DATE: 20 February 2009
PARTIES: In matter No. CA 40619/07: Ken Hancock – First Appellant John Hill – Second Appellant Jason Arnold – First Respondent John William Dodd – Second Respondent
In matter No. CA 40639/07: John William Dodd – Appellant Jason Arnold – First Respondent Ken Hancock and John Hill – Second Respondents
JUDGMENT OF: Ipp JA McColl JA Basten JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 20397/02
LOWER COURT JUDICIAL OFFICER: Hulme J
LOWER COURT DATE OF DECISION: 24 March 2006; 8 September 2006; 28 June 2007; 13 September 2007
LOWER COURT MEDIUM NEUTRAL CITATION: [<i>Arnold v Hancock</i>] [2006] NSWSC 156; [<i>Arnold v Hancock (Damages 2)</i>] [2007] NSWSC 659
COUNSEL: In matter No. 40619/07: G Watson/J Sheller –Appellants C S Leahy/T Boyd – First Respondent M Windsor – Second Respondent
In matter No. 40639/07: M Windsor – Appellant CS Leahy/T Boyd - First Respondent G Watson/J Sheller – Second Respondents
SOLICITORS: In matter No. 40619/07: Ebsworth & Ebsworth –Appellants Herbert Weller – First Respondent Minter Ellison – Second Respondent
In matter No. 40639/07: Minter Ellison – Appellant Herbert Weller – First Respondent Ebsworth & Ebsworth –Second Respondents
CATCHWORDS: COSTS – offers of compromise – indemnity costs – whether letters contained offers of compromise – invitation to abandon cross-claim – offer to accept judgment on cross-claim without costs order – invitation to enter into release and indemnity – time allowed for acceptance COSTS – scope of leave given to challenge costs orders PRACTICE AND PROCEDURE – entry of judgment – procedure for variation of orders – oral application – power of Court to vary orders after entry – whether order determining claim for relief includes ancillary or consequential relief – Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.16
CASES CITED: [<i>Deputy Commissioner of Taxation v Meredith (No 2)</i>] [2008] NSWCA 133 [<i>Hancock v Arnold; Dodd v Arnold</i>] [2008] NSWCA 254 [<i>Herning v GWS Machinery Pty Ltd [No. 2]</i>] [2005] NSWCA 375 [<i>Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2)</i>] [2008] NSWCA 85 [<i>Leichhardt Municipal Council v Green</i>] [2004] NSWCA 341 [<i>Sunlec International Ltd v Carroll Australasia Pty Ltd</i>] [2001] WASC 354 [<i>Townsend v Townsend (No 2)</i>] [2001] NSWCA 145
TEXTS CITED:
DECISION: (1) Motion dismissed.[<br>][<br>](2) The barrister to pay the solicitors’ costs of the motion.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40619/07 CA 40639/07 SC 20397/02
IPP JA McCOLL JA BASTEN JA
20 February 2009
HANCOCK & ANOR v ARNOLD & ANOR DODD v ARNOLD & ANOR [NO. 2]
Judgment
THE COURT: In 1994 Mr Jason Arnold (“the plaintiff”) was injured whilst at work in an accident involving a motor vehicle. He obtained…
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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AGLC
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Case
[2009] NSWCA 19
Decision Date
CaseChat Overview and Summary
The proceeding involved two related appeals before the New South Wales Court of Appeal, brought by Hancock and Dodd (the appellants) against Arnold (the respondent). The dispute concerned the proper interpretation and effect of certain correspondence exchanged between the parties, particularly in relation to an offer to compromise a cross-claim and an invitation to enter into a release and indemnity. The appeals challenged orders made by the primary judge concerning costs.
The central legal issues before the Court of Appeal were whether the letters constituted valid offers of compromise under the Uniform Civil Procedure Rules 2005 (NSW), specifically whether they were offers to accept judgment on the cross-claim without a costs order, or invitations to enter into a release and indemnity. The Court also considered the scope of leave granted to challenge the costs orders and the procedure for varying orders after their entry, including whether an oral application was permissible and whether an order determining a claim for relief encompassed ancillary or consequential relief.
The Court of Appeal held that the correspondence did not amount to a formal offer of compromise that would attract the operation of the rules relating to offers of compromise. The letters were construed as invitations to negotiate or proposals that did not meet the requirements for a binding offer. Furthermore, the Court found that the primary judge had correctly entered judgment and that the subsequent oral application to vary those orders was not a proper procedure under rules 36.11 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). The Court determined that the orders made by the primary judge were final and that the appellants had not demonstrated any basis for varying them.
Consequently, the Court of Appeal dismissed the appellants' motions. The barrister, who was a party to the proceedings, was ordered to pay the solicitors' costs of the motion.
Orders
Orders of the court
(1) Motion dismissed. (2) The barrister to pay the solicitors' costs of the motion.