Jones v Bradley (No 2)

[2003] NSWCA 258

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Jones v Bradley (No. 2) [2003]  NSWCA 258

FILE NUMBER(S):
41050/01

HEARING DATE(S):               Written Submissions

JUDGMENT DATE: 16/09/2003

PARTIES:
Edward John Jones (Appellant)
Emma Ward Bradley (Respondent)

JUDGMENT OF:       Meagher JA Beazley JA Santow JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 2140/99

LOWER COURT JUDICIAL OFFICER:     Dent DCJ

COUNSEL:
C Hoeban (Appellant)
Paul S Jones (Respondent)

SOLICITORS:
Connery & Partners (Appellant)
Colin Daley Quinn (Respondent)

CATCHWORDS:
Costs - offer of compromise - Calderbank offer - exercise of discretion - settlement negotiations - reasonableness of offer - time to consider offer - application of Rules of Court

LEGISLATION CITED:
Evidence Act 1995 (NSW) s131(2)(h)

DECISION:
1.  The respondent is to pay the appellant's costs from 26 October 2001 to 3 December 2001 on a party/party basis
2.  The respondent is to pay the appellant's costs of the appeal until 20 December 2001 on a party/party basis
3.  The respondent is to pay the appellant's costs of the appeal from 21 December 2001 on an indemnity basis

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA         41050/01
DC         2140/99

MEAGHER JA
BEAZLEY JA
SANTOW JA

16 Sepember 2003

JONES v BRADLEY (No. 2)

Judgment

1. The Court: The Court delivered Judgment in this matter on 16 April 2003.  The appeal was allowed and the verdict in favour of the respondent was reduced by $1,314,844.20, leaving a judgment sum in her favour of $769,854.85. 

1. That left outstanding the question of the costs of the trial and of the appeal.  At trial, Dent DCJ ordered the appellant to pay costs on an indemnity basis from 23 October 2001.  Given his success on the appeal, the appellant now seeks to set aside that order and seeks an order that the respondent pay his costs on a party/party basis from 26 October 2001, when he made his final offer of settlement, until 3 December 2001, when Dent DCJ made his costs order in the matter.  The appellant also seeks an order that the respondent pay indemnity costs of the appeal from 21 December 2001, including the costs of this costs application.

2. The respondent resists the appellant’s application.  She acknowledges that, due to the outcome of the appeal, it is appropriate that Dent DCJ’s costs order be varied and proposes that the appellant pay the respondent’s costs of the trial on a party/party basis.  She concedes her liability to pay the appellant’s  costs of the appeal but proposes that these be on a party/party basis. 

3. It is necessary to review the history of the litigation in this matter in order to understand the bases upon which each party contends it is entitled to costs: 

   On 15 October 2001 the proceedings commenced before Dent DCJ;

   On 22 October 2001, the appellant made an offer of settlement, in terms purporting to be a Calderbank offer, of $1,000,000 inclusive of out of pocket expenses plus costs.  This offer was open until 10.00am on Wednesday 24…