Oxlade v Gosbridge Pty Ltd (No 2)

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CITATION: OXLADE v GOSBRIDGE PTY LTD & ORS (NO 2) [1999] NSWCA 165
FILE NUMBER(S): CA 40068/97
HEARING DATE(S): 26 March 1999
JUDGMENT DATE:
3 June 1999

PARTIES :
HEATHER OXLADE v GOSBRIDGE PTY LTD & ORS (No 2)
JUDGMENT OF: Mason P at 1; Fitzgerald JA at 10; Sheppard AJA at 13
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : DC 10092/94
LOWER COURT JUDICIAL OFFICER: Delaney ADCJ
COUNSEL: D A Wheelahan QC/ M A Elkhaim (Appellant)
H J Marshall, D Wilson (Respondent)
SOLICITORS: McCourts (Appellant)
Thurlow Fisher (Respondent)
CATCHWORDS: COSTS - Offer of compromise - District Court Rules Part 19A - Discretion to "otherwise order"
DECISION: Costs order amended

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL CA 40068/97

    DC 10092/94

    MASON P
    FITZGERALD JA
    SHEPPARD AJA

    Thursday 3 June 1999

    HEATHER OXLADE v GOSBRIDGE PTY LTD & ORS (No 2)

    JUDGMENT
1 MASON P: This appeal was allowed for reasons given on 18 December 1998. The respondents were ordered to pay the appellant’s costs of the appeal. 2 The appellant was the defendant in the District Court. She had commenced third party proceedings against the respondents seeking contribution or indemnity from them with respect to her potential liability to the plaintiff. She failed in the District Court. On appeal, this Court set aside the orders made in the proceedings on the Third Party Notice. In lieu thereof, it was ordered that there should be a verdict for the defendant (ie the appellant) against the first, second and third third parties (ie the respondents) in the sum of $26,666 with costs. The appellant seeks a variation of that costs order referable to the proceedings below to the effect that her costs be paid on an indemnity basis from 21 November 1995. That was the date on which the appellant made an offer of compromise in accordance with Pt 19A of the District Court Rules which the respondents did not accept, and which the appellant bettered in the upshot of her successful appeal. 3 The appellant is to be regarded as a plaintiff and the respondents are to be regarded as defendants for the purpose of applying the particular cost rule, found at the relevant time in Pt 19A r9(5). It provided:
        Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed or assessed on an indemnity basis, in addition to his costs in respect of the claim incurred before that date, taxed or assessed on a party and party basis.
4    The principles touching the discretion to “otherwise order” are discussed in Morgan v Johnson (1998) 44 NSWLR 578.…
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Details
Case
[1999] NSWCA 165
Decision Date

CaseChat Overview and Summary

The proceeding before the Court of Appeal of New South Wales concerned an appeal by the plaintiff, Oxlade, against a costs order made by the District Court. The dispute arose from an offer of compromise made by the defendant, Gosbridge Pty Ltd, pursuant to Part 19A of the District Court Rules. The primary issue on appeal was the District Court's exercise of its discretion regarding costs following the rejection of the offer of compromise.

The Court of Appeal was required to determine whether the District Court had erred in its application of the principles governing costs orders under Part 19A of the District Court Rules, particularly in relation to the discretion to "otherwise order". This involved considering whether the circumstances of the case warranted departing from the usual consequences of an offer of compromise not being accepted.

The Court of Appeal found that the District Court judge had misapprehended the nature of the discretion conferred by Part 19A. The judge had treated the discretion to "otherwise order" as requiring a positive justification for departure from the usual rule, whereas the correct approach was that the discretion was broad and could be exercised in favour of the offeree (the plaintiff in this instance) without the need for exceptional circumstances. The Court held that the judge had failed to give sufficient weight to the plaintiff's success in the litigation, even though that success was less than what was sought.

Consequently, the Court of Appeal amended the costs order made by the District Court.

Orders

Orders of the court

Costs order amended

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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