Lim v Overall

[1999] NSWSC 280

CITATION:	Lim v Overall [1999] NSWSC 280
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3335/97
HEARING DATE(S):	26 March 1999
JUDGMENT DATE:	26 March 1999
PARTIES :	Anne Lim (Plaintiff) Timothy John Overall (Defendant)
JUDGMENT OF:	Young J

COUNSEL :	Plaintiff: D Flaherty Defendant: G Roberts
SOLICITORS:	Plaintiff: Verekers Defendant: Hamer & Hamer
CATCHWORDS:	Procedure [555]; Offer of compromise; De facto relationship proceedings; Offer made by defendant less than 14 days before hearing; Accepted on day of hearing; Less than $40,000 recovered; Whether court should otherwise order to prevent plaintiff having costs
ACTS CITED:	Supreme Court Rules (NSW) Pt 22 r 3(5), Pt 52 r 34, Pt 52A r 22(1)
DECISION:	See paras 1 and 11

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG, J

FRIDAY, 26 MARCH 1999

3335/97 - ANNE LIM V TIMOTHY JOHN OVERALL

JUDGMENT

1 HIS HONOUR : These proceedings come before me following my decision in 4144/98. It is now clear that the matter has been settled for $16,000 by way of acceptance of an offer of compromise. Accordingly, there must be an order in these proceedings that the defendant pay to the plaintiff the sum of $16,000. The next question is the question of costs.
2 An offer of compromise was made on 11 September 1998 and accepted on 28 September 1998. Part 52A r 22(1) of the Supreme Court Rules says:

"Upon the acceptance of an offer of compromise in accordance with Pt 22 r 3(5), the defendant shall, unless the Court otherwise orders, pay the costs in respect of a claim by the plaintiff against the defendant up to and including the day the offer was accepted."

3 Mr D Flaherty, for the plaintiff, says that that rule directly applies here. Mr G Roberts, for the defendant, says that it does not and he compares and contrasts the rule with other subrules which make a distinction between the case where the offer is made by the defendant and where the offer is made by the plaintiff. I appreciate that argument, but it does seem to me that subrule 1 deliberately takes up both sets of offers, so that the rule is applicable.
4 The next question is whether the court should “otherwise order”. As to this Mr Roberts says that there is an inconsistency between subrule 1 and subrule 6 in that the latter focuses on the date of the making of the offer, and the former the date of acceptance. Of course, logically there is no acceptance in the case covered by subrule 6, but nonetheless there could well be a situation whereby considerable costs are built up between the time the offer of compromise is made and the time when it is accepted.
5 Mr Roberts puts that it is inappropriate that these costs should be borne by the defendant. He says the defendant made an offer on the 11th, the plaintiff did nothing until the very last moment, ran up costs and then accepted it, and that that operates unfairly to the defendant.
6 Mr Flaherty puts, on the other hand, that this is a common aspect in litigation and that it is really for the defendant's solicitors to make sure that offers of compromise are made sufficiently early so that the twenty-eight days, which is the minimum time for which they can be open under Pt 22 r 3(5), expires before the hearing. If defendants do not make offers of compromise early enough, then the consequences about which Mr Roberts complains, and which can be even worse in other cases, are just part of the ordinary thrust of litigation.
7 After consideration, I think that is right, and that, unless any particular circumstances are shown, the court should not otherwise order that the date of acceptance be the relevant date.
8 The other matter is the question as to whether I should apply by analogy Pt 52A r 34. That rule does not directly apply because the court has not yet made an order for the amount of $16,000, which is well under the present $40,000 amount prescribed under r 34. However, the court will be making an order very shortly to terminate these proceedings in accordance with the settlement.
9 Mr Roberts says either because the order will be made or, alternatively, by analogy with r 34, as the plaintiff gets an order for an amount under $40,000 then she should not be entitled to any costs.
10 Mr Flaherty, on the other hand, says r 34 does not apply to an offer of compromise situation; people can compromise proceedings for a number of reasons, and that the amounts for which a matter is settled is not necessarily something that bears any relation to what the court might give, had the court heard the matter to finality.
11 Again, I think the plaintiff's contention is correct. Accordingly, the costs consequences should flow from Pt 52A r 22, that is, that it should be recorded that the plaintiff is entitled to costs of the

proceedings up to and including 28 September 1998. The costs since 2 October are taken up in the other proceedings.
*************

Last Modified: 04/08/1999