Manly Council v Bryne (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Manly Council v Bryne and Anor (No. 2) [2004]  NSWCA 227

FILE NUMBER(S):
40449/03

HEARING DATE(S):               Written submissions in chambers

JUDGMENT DATE: 27/07/2004

PARTIES:
Manly Council - Appellant
Brooke Byrne by her next friend Michael Byrne - First Respondent
Ken Taylor as Representative of the Members and Office Holders of the Manly Water Polo Club - Second Respondent

JUDGMENT OF:       Beazley JA Pearlman AJA Campbell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          4307/02

LOWER COURT JUDICIAL OFFICER:     Garling DCJ

COUNSEL:
R S Sheldon - Appellant
M L Williams SC, S W Davis - First Respondent
A B Parker - Second Respondent

SOLICITORS:
Phillips Fox - Appellant
McCabe Terrill Lawyers - First Respondent
Curwood & Partners Solicitors - Second Respondent

CATCHWORDS:
PROCEDURE - costs - in proceedings in the Court of Appeal, notice of compromise served offering to accept the same number of dollars as awarded in Court below - effect of offer of compromise is to offer to forego interest - whether indemnity costs to be ordered - manner of operation of Part 52A rule 22(4) Supreme Court Rules - whether the offer involved a real compromise

LEGISLATION CITED:
Supreme Court Rules

DECISION:
Indemnity costs ordered

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40449/03
DC 4307/02

BEAZLEY JA
PEARLMAN AJA
CAMPBELL J

27 JULY 2004

MANLY COUNCIL v BYRNE & ANOR (NO. 2)

Judgment

1. BEAZLEY JA:  I agree with Campbell J.

2. PEARLMAN AJA:  I also agree with Campbell J.

3. CAMPBELL J:  Judgment was given in this matter on 9 June 2004:  Manly Council v Byrne & Anor [2004] NSWCA 123. The first respondent, Ms Byrne, had sued Manly Council in the District Court concerning an injury she had sustained at a swimming pool run by the Council. The District Court judge gave judgment on 15 May 2003, in which he held the Council liable for the tort of negligence, assessed damages, and reduced the plaintiff’s damages by 15% by reason of the plaintiff’s contributory negligence. In the result, the plaintiff received a judgment in the District Court for $431,288 plus costs.

4. The Council’s appeal was wholly unsuccessful, and on 9 June 2004 it was dismissed.  At the time of handing down the judgment, the First Respondent indicated her desire to place evidence and submissions before the Court concerning costs.  Consequently, no costs orders were made on the day the judgment was handed down.

5. The First Respondent has now demonstrated that on 3 July 2003 her solicitors sent to the solicitors for the Council an offer of compromise which stated:

   “The First Respondent offers to settle this claim on a compromise basis as follows:-

   1.Verdict and judgment for the First Respondent in the sum of $431,288 plus costs.

   2.The Appellant to pay the First Respondent’s costs as agreed.

   3.            This offer shall remain open for 28 days.”

   That offer was not actually received by the solicitors for the Council until 10…