Hancock v Arnold; Dodd v Arnold (No 2)

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.