Lawson v Bourke (No 2)

[2008] NSWDC 159

CITATION:	Lawson v Bourke (No 2) [2008] NSWDC 159
HEARING DATE(S):	29 July 2008
EX TEMPORE JUDGMENT DATE:	29 July 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 The award made in paragraph 301 of the reasons published on 18 June 2008 in respect of past out-of-pocket expenses is $26,008.95. I note that the total of the advances made to the plaintiff by way of interim payments and out-of-pocket expenses is $52,518.86. The total of the compensation awarded to the plaintiff is therefore calculated at $99,739.95. Taking into account the s 83 payments there will be verdict in judgment for the plaintiff in the sum of $47,221.09. 2 The defendant is to pay the plaintiff’s costs of proceedings. 3 The exhibits will be retained for 28 days or until further ordered.
CATCHWORDS:	COSTS - offer of compromise - failure to state whether inclusive of interim payments
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
PARTIES:	Merrill Dawn Lawson (Plaintiff) Kristy Bourke (Defendant)
FILE NUMBER(S):	Newcastle 102/07
COUNSEL:	H Halligan (Plaintiff) D P Kelly (Defendant)
SOLICITORS:	Brazel Moore (Plaintiff) McLachlan Chilton (Defendant)

JUDGMENT

1 Reasons for judgment were delivered in this matter on 18 June 2008 and the proceedings adjourned to deal with the final calculation of the judgment sum and issues relating to costs. The parties have agreed on the final figures and I am in a position to proceed to make the final orders in the matter.

2 The letter from AAMI to the plaintiff, which she signed on 14 June 2003 will be marked exhibit 42.

EXHIBIT #42 LETTER FROM AAMI TO PLAINTIFF TENDERED, ADMITTED WITHOUT OBJECTION

3 There is an argument concerning costs that revolves around an offer of compromise made by the defendant and received by the plaintiff’s solicitor on 8 June 2007. The defendant, on the basis of that offer, asks for an order that it pay the plaintiff’s costs up to and including 8 June 2007 on an ordinary basis and that the plaintiff pay the defendant’s costs on an indemnity basis thereafter. The plaintiff resists the order, pointing to the fact that the offer does not comply with the requirements of rule 20.26, specifically sub-rule 3(b) of the Uniform Civil Procedure Rules 2005, which requires that where an interim payment has been made, the offer must state whether or not the offer is in addition to the payment that has been made. In this case interim payments were made to the plaintiff to the value of $38,620.10.

4 The offer of compromise makes no reference to those interim payments. The defendant has put into evidence a document signed by the plaintiff on 14 July 2003 on receipt of one such payment in the sum of $5,000, in which she acknowledged that amounts paid in advance of settlement, will be deducted from any damages I may be awarded. The defendant argued that on the basis of acknowledgments such as that the plaintiff was well aware of the fact that the interim payments would be deducted from the offer made in the offer of compromise.

5 The defendant also asked me to exercise my discretion and to apply s 14 of the Civil Procedure Act 2005 to dispense with the requirement of rule 20.26(3)(b) in order to put into effect the principles of s 56 of the Act. This submission was based upon the principles behind the regime for offers of compromise, namely attempts to resolve proceedings in a manner that is just, quick and cheap. Certainly had the proceedings been settled on the basis of the offer made in June 2007, an enormous amount of Court time and cost to the parties would have been avoided.

6 However, I find myself agreeing with the submissions put forward on behalf of the plaintiff that in making specific reference to s 83 payments in the offer of compromise, but no reference to the interim payments, it would not have been possible for the plaintiff to understand precisely the amount of the offer conveyed by that document. In my view that was the very purpose of the rules requiring, in very clear terms, that the offer state whether it is inclusive or exclusive of interim payments.

7 In those circumstances I have come to the conclusion that the defendant ought not to be allowed to rely upon that offer of compromise.

8 The orders which I make are as follows:

1 The award made in paragraph 301 of the reasons published on 18 June 2008 in respect of past out-of-pocket expenses is $26,008.95. I note that the total of the advances made to the plaintiff by way of interim payments and out-of-pocket expenses is $52,518.86. The total of the compensation awarded to the plaintiff is therefore calculated at $99,739.95. Taking into account the s 83 payments there will be verdict in judgment for the plaintiff in the sum of $47,221.09.

2 The defendant is to pay the plaintiff’s costs of proceedings.

3 The exhibits will be retained for 28 days or until further ordered.

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