Officeworks Ltd v Christopher (No 2)

[2019] NSWCA 131

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Officeworks Ltd v Christopher (No 2) [2019] NSWCA 131

Hearing dates:

On the papers

Decision date:

06 June 2019

Before:

Meagher JA; Gleeson JA; Leeming JA

Decision:

1. In lieu of the judgment of the District Court entered on 19 October 2018, which was set aside by this Court’s order of 6 May 2019, enter judgment in favour of the plaintiff in the sum of $7,517.25.

 

2. Set aside the order of the District Court as to costs made on 19 October 2018, and in lieu thereof:
(a) order the defendant to pay the plaintiff’s costs up to and including 23 June 2016, and
(b) order the plaintiff to pay the defendant’s costs on an indemnity basis after 23 June 2016.

 

3. Order the respondent to pay the appellant’s costs of the appeal.

4. The respondent be granted a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

COSTS – offer of compromise – defendant’s offer better than that obtained by plaintiff – special costs order made

Legislation Cited:

Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005, rr 20.26, 42.13A, 42.15

Cases Cited:

Officeworks Ltd v Christopher [2019] NSWCA 96

Category:

Costs

Parties:

Christina Christopher (Appellant)
Officeworks Ltd (Respondent)

Representation:

Counsel:
G Watson SC and I Griscti (Appellant)
K Andrews (Respondent)

  Solicitors:
Gilchrist Connell (Appellant)
Slater & Gordon (Respondent)

File Number(s):

2018/347254

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

None

Date of Decision:

19 October 2018

Before:

Maiden DCJ

File Number(s):

2015/223966

Judgment

1. THE COURT: On 6 May 2019, this Court allowed an appeal from the District Court and set aside the judgment entered in favour of Ms Christopher on 19 October 2018: Officeworks Ltd v Christopher [2019] NSWCA 96. This Court relevantly made directions for the parties to provide further submissions as to the amount of the judgment to which Ms Christopher is entitled, and costs. That has occurred, by submissions filed 20 and 31 May 2019.

2. It is common ground that Ms Christopher is entitled to judgment in the sum of $7,517.25. It is also common ground that Ms Christopher should be ordered to pay Officeworks’ costs in this Court, but that she should be granted a certificate under the Suitors’ Fund Act 1951 (NSW). The only dispute is as to the costs at first instance.

3. Ms Christopher submits that liability having been in dispute at trial, she should be entitled to a favourable costs order at first instance. Officeworks accepts that Ms Christopher is prima facie entitled to her costs at first instance, but relies upon an offer of compromise dated 23 June 2016, expressed to be open for acceptance by 5pm on Monday 27 June 2016, in the amount of $10,000. Officeworks submits that the judgment to which Ms Christopher is entitled is “no more favourable to the plaintiff than the terms of the offer”, such that in accordance with UCPR r 42.15(2) it is entitled to an order for costs on an indemnity basis from the day after the offer.

4. The first question is whether the offer was one which complied with the rules. Rule 20.26(5) provides that the closing date for acceptance of an offer in a case such as this, made within two months of the hearing, “is to be such date as is reasonable in the circumstances”. Officeworks submits that the offer was made shortly prior to the commencement of the hearing, on Wednesday 29 June 2016, well after the service of all relevant evidence. Bearing in mind that those advising Ms Christopher had the Friday, the weekend and the Monday before a trial which was to start on Wednesday to consider the offer, the closing date for acceptance was reasonable in the circumstances.

5. The rules reflect the public policy of encouraging settlement of litigation. Had Ms Christopher accepted the offer, she would have enjoyed a judgment in a larger amount than she ultimately obtained, as well as a cost order in her favour, in accordance with r 42.13A(2). No reason has been suggested to “order otherwise” so as to displace the operation of the rules, and we cannot see any proper basis for taking that course. Accordingly, while Officeworks should be ordered to pay Ms Christopher’s costs at first instance until 23 June 2016, Ms Christopher should be ordered to pay Officeworks’ costs at first instance, on an indemnity basis, after 23 June 2016.

6. For those reasons, the Court’s orders are:

1. In lieu of the judgment of the District Court entered on 19 October 2018, which was set aside by this Court’s order of 6 May 2019, enter judgment in favour of the plaintiff in the sum of $7,517.25.

2. Set aside the order of the District Court as to costs made on 19 October 2018, and in lieu thereof:

1. order the defendant to pay the plaintiff’s costs up to and including 23 June 2016, and

2. order the plaintiff to pay the defendant’s costs on an indemnity basis after 23 June 2016.

3. Order the respondent to pay the appellant’s costs of the appeal.

4. The respondent be granted a certificate under the Suitors’ Fund Act 1951 (NSW).

**********