Ngo v Fenech

[1999] NSWCA 219

CITATION:	Ngo v Fenech [1999] NSWCA 219
FILE NUMBER(S):	CA 40527/98
HEARING DATE(S):	16/06/99
JUDGMENT DATE:	16 June 1999
PARTIES :	Van Knoa Ngo v Doris Fenech
JUDGMENT OF:	Fitzgerald JA at 1; Brownie AJA at 6

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	10641/97
LOWER COURT JUDICIAL OFFICER:	Hughes ADCJ

COUNSEL:	J D Hislop QC (Claimant) H J Halligan ( Opponent)
SOLICITORS:	Abbott Tout (Claimant) Michael E Bradstreet (Opponent)
CATCHWORDS:	Costs; offer of compromise; whether offer in accordance with Part 19A of the District Court Rules.
DECISION:	Leave refused

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40527/98
DC10641/97

FITZGERALD JA
BROWNIE AJA

Wednesday, 16 June 1999

Van Khoa NGO v Doris FENECH

JUDGMENT

1   FITZGERALD JA: This is an application for leave to appeal against orders made with respect to costs at the conclusion of a District Court action in which the opponent recovered a small amount by way of damages. The claimant was the defendant in that action which arose out of a motor accident in which the defendant claimant admitted liability. The action could have been brought in the Local Court, not the District Court, but the trial judge found that on the facts there was a sufficient reason for the course adopted within the meaning of part 39A r 12 of the District Court rules. Leave to appeal should not be granted to challenge that finding. 2 The claimant’s second point related to an offer of compromise made by the claimant on 23 May 1997 in the following terms:

“The defendant offers to compromise all causes of action upon which the plaintiff claims on the following terms:

1. Verdict and judgment for the plaintiff in the sum of $3,200.
2. No order as to costs.

Both the principal offer and the costs offer are made in accordance with Pt 19(A) of the District Court Rules and are made without prejudice, save as to the question of costs and interest. These offers may only be accepted on or before the expiration of 28 days after the offer is made”.

3 The claimant submitted that such an offer was within the terms of part 19A r 2(a) of the District Court Rules. Assuming that to be so, which involves an assumption that an offer that there be no order as to costs is within the meaning of r 2(a) a “costs offer”, the effect is to refer the Court (according to the claimant’s submissions) to O 39 r 25 sub r 6 of the District Court Rules which provide “Where an offer is made by a defendant and not accepted by the plaintiff and the plaintiff obtains an order or judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then unless the Court otherwise orders” and then the rule goes on to provide that after the date of the offer the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim. 4 This Court is not in a position to compare the claimant’s offer with the judgment which the opponent recovered because there is no quantification of costs and it is impossible to tell whether the total amount recovered by the plaintiff exceeds the total amount offered by the claimant on 23 May 1997. In these circumstances leave should not be granted to challenge the “otherwise” order made by the judge under O 39(a) r 25(6). 5 I would accordingly refuse the application with costs. 6 BROWNIE AJA: I agree. 7 FITZGERALD JA: The application is refused with costs.