Pettitford v Whicker - [2005] NSWCA 370

CITATION:
Pettiford v Whicker [2005] NSWCA 370

HEARING DATE(S):
24/10/2005

JUDGMENT DATE:

24 October 2005

JUDGMENT OF:
Handley JA at 1 & 28; Ipp JA at 2; Bryson JA at 3

DECISION:
Refer para 27

CATCHWORDS:
COSTS - Offer of Compromise SCR Pt 5A r 22(4) and (5) - whether judgment no less favourable than the offer - decision turned on construction of offer as to which party was to pay the mortgage debt - decision on construction of terms of offer - no question of principle.

LEGISLATION CITED:
Property (Relationships) Act 1984 (NSW)
Supreme Court Act 1970
Supreme Court Rules

PARTIES:
Colleen Nina Pettiford - Appellant
Susan Desiree Whicker - Respondent

FILE NUMBER(S):
CA 41210/04

COUNSEL:
Ms L. Judge Appellant
Ns J. Housego Respondent

SOLICITORS:
Sydun & Co Appellant
Robinson & Mason Pty Ltd Respondent

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
1697/02

LOWER COURT JUDICIAL OFFICER:
AsJ McLaughlin

- 11 -

CA 41210/04

HANDLEY JA
IPP JA
BRYSON JA
MONDAY 24 OCTOBER 2005

COLLEEN NINA PETTIFORD v SUSAN DESIREE WHICKER

Judgment

1 HANDLEY JA: I agree.

2 IPP JA: I agree.

3 BRYSON JA: The claimant Ms Pettiford, the defendant in the Equity Division, seeks leave to appeal against order (1) made by Master McLaughlin on 22 December 2004 relating to costs, in these terms:

“I order that the defendant pay the costs of the plaintiff of the proceedings, such costs to be on the party and party basis up to 11am on 19 November 2003 and on the indemnity basis thereafter.”

4 The form of the order for costs is explained by the Master having been of the view that he should act under provisions of the Supreme Court Rules then in force which relate to an offer of compromise, Pt 22 Division 1 and particularly Regulation 3, and Pt 52A Regulation 22(4) and (5). Those sub rules are:-

(4) where an offer is made by a plaintiff and not accepted by the defendant and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favour to the plaintiff then the terms of the offer, then, unless the court otherwise orders, the plaintiff, shall, subject to rule 33 be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to his costs incurred before and on that day, assessed on a party and party basis.

(5) For the purpose of sub rule (4), where the offer was made on the 1st or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to the plaintiff’s costs in respect of the claim from 11am following the day on which the offer was made, assessed on an indemnity basis, in addition to the plaintiff’s costs incurred before that time, assessed on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pettitford v Whicker

Details

AGLC: Pettiford v Whicker [2005] NSWCA 370
Case: [2005] NSWCA 370
Decision Date: 24 October 2005

CaseChat Overview and Summary

The appeal concerned an application for costs in the Supreme Court of New South Wales, following a dispute between the parties, Pettitford and Whicker. The core of the disagreement revolved around the interpretation of an offer of compromise made under Part 5A, Rule 22 of the Supreme Court Rules.

The primary legal issue before the Court of Appeal was whether the judgment obtained by the plaintiff was "no less favourable" than the offer of compromise made by the defendant, for the purposes of determining costs. This question turned entirely on the construction of the terms of the offer, specifically as to which party was to be responsible for the mortgage debt.

The Court of Appeal found that the construction of the offer was determinative. The judgment obtained by the plaintiff was, in fact, less favourable than the offer of compromise because the offer had stipulated that the plaintiff would be responsible for the mortgage debt, whereas the judgment did not impose this obligation. Consequently, the condition for the offer of compromise to apply to costs was not met.

The Court of Appeal ordered that the plaintiff was entitled to the costs of the proceedings in the Supreme Court, and that the defendant was entitled to the costs of the appeal.

Orders

Orders of the court

Refer para 27

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pettiford v Whicker [2005] NSWCA 370
HEARING DATE(S):	24/10/2005
JUDGMENT DATE:	24 October 2005
JUDGMENT OF:	Handley JA at 1 & 28; Ipp JA at 2; Bryson JA at 3
DECISION:	Refer para 27

CATCHWORDS:	COSTS - Offer of Compromise SCR Pt 5A r 22(4) and (5) - whether judgment no less favourable than the offer - decision turned on construction of offer as to which party was to pay the mortgage debt - decision on construction of terms of offer - no question of principle.
LEGISLATION CITED:	Property (Relationships) Act 1984 (NSW) Supreme Court Act 1970 Supreme Court Rules
PARTIES:	Colleen Nina Pettiford - Appellant Susan Desiree Whicker - Respondent
FILE NUMBER(S):	CA 41210/04
COUNSEL:	Ms L. Judge Appellant Ns J. Housego Respondent
SOLICITORS:	Sydun & Co Appellant Robinson & Mason Pty Ltd Respondent

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	1697/02
LOWER COURT JUDICIAL OFFICER:	AsJ McLaughlin