Pittorino v Yates - [2009] NSWCA 87

New South Wales

Court of Appeal

CITATION: Pittorino v Yates [2009] NSWCA 87

HEARING DATE(S): 4 February 2009

JUDGMENT DATE:
27 April 2009

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Handley AJA at 43

DECISION: (a) Leave to appeal granted;
(b) The claimant’s notice of appeal to be filed within 7 days of the date of these orders;
(c) Appeal dismissed;
(d) The claimant to pay the opponent’s costs of the summons for leave to appeal and the appeal.

CATCHWORDS: PROCEDURE – costs – departing from the general rule – conduct of parties – offer of compromise – whether offer of compromise made less than two months before the date of commencement of the trial had been left open for a reasonable time – whether the reasonableness of the time for which an offer is left open for acceptance is assessed as at the date the offer is made or having regard to circumstances both before and after that date

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Hillier v Sheather (1995) 36 NSWLR 414, 422
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Leda v Weerden (No 3) [2006] NSWSC 220
Morgan v Johnson [1998] NSWSC 367; (1998) 44 NSWLR 578
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
South Eastern Sydney Area Health Service v King [2006] NSWCA 2

PARTIES: Nazzareno Pittorino
Sharmain Yates

FILE NUMBER(S): CA 40901/07

COUNSEL: Cl: L King SC
Opp: H Kelly SC

SOLICITORS: Cl: Moray & Agnew, Newcastle
Opp: Stacks, Coolangatta

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 36/2006

LOWER COURT JUDICIAL OFFICER: Blanch CJ

LOWER COURT DATE OF DECISION: 23 November 2007

CA 40901/07
DC 36/06

BEAZLEY JA
TOBIAS JA
HANDLEY AJA
Monday 27 April 2009

NAZZARENO PITTORINO v SHARMAIN YATES

Judgment

1 BEAZLEY JA: I agree with Tobias JA.

2 TOBIAS JA: On 23 November 2007, at the conclusion of a trial conducted before Justice Blanch at the Lismore sittings of the District Court conducted at Byron Bay, his Honour entered a verdict in favour of the opponent against the claimant in the sum of $378,501. The opponent’s claim had arisen out of a motor vehicle accident that occurred in 2004.

3 On 25 September 2007 the claimant had made an Offer of Compromise pursuant to r 20.26(1) of the Uniform Civil Procedure Rules 2005 (the UCPR) (the Offer) in the sum of $400,000 exclusive of costs. As the verdict obtained by the opponent was less than the offer, the claimant made an application pursuant to r 42.15 that the opponent pay the claimant’s costs on an indemnity basis as and from 26 September 2007, that being the day after the offer was made: see r 42.15(2)(b)(i).

4 His Honour proceeded to hear the application and then, for reasons not presently relevant, adjourned the matter for further argument in Sydney.

5 On 12 December 2007 his Honour delivered judgment…

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 Pittorino v Yates

Details

AGLC: Pittorino v Yates [2009] NSWCA 87
Case: [2009] NSWCA 87
Decision Date: 27 April 2009

CaseChat Overview and Summary

In *Pittorino v Yates*, the claimant appealed to the Court of Appeal of New South Wales against a decision concerning the costs of proceedings. The central dispute revolved around whether an offer of compromise, made by the opponent less than two months before the trial commenced, had been left open for a reasonable time for acceptance, thereby justifying a departure from the general rule regarding costs.

The primary legal issue before the Court of Appeal was whether the reasonableness of the time an offer of compromise is left open for acceptance should be assessed solely at the date the offer is made, or if it should consider circumstances that arose both before and after that date. This determination was crucial for deciding whether the opponent was entitled to an order for costs on an indemnity basis, as opposed to the ordinary party-and-party basis.

The Court of Appeal considered the principles governing offers of compromise and the discretion of the court in awarding costs. It reasoned that the reasonableness of the time an offer remains open is not confined to the circumstances existing at the moment of its making. Instead, the court must have regard to all relevant circumstances, including those that unfold subsequently, to assess whether the offer was genuinely available for acceptance for a reasonable period. Ultimately, the Court of Appeal dismissed the claimant's appeal, upholding the lower court's decision. The claimant was ordered to pay the opponent's costs of both the summons for leave to appeal and the appeal itself.

Orders

Orders of the court

(a) Leave to appeal granted; (b) The claimant's notice of appeal to be filed within 7 days of the date of these orders; (c) Appeal dismissed; (d) The claimant to pay the opponent's costs of the summons for leave to appeal and the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Pittorino v Yates [2009] NSWCA 87
HEARING DATE(S):	4 February 2009
JUDGMENT DATE:	27 April 2009
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; Handley AJA at 43
DECISION:	(a) Leave to appeal granted; (b) The claimant’s notice of appeal to be filed within 7 days of the date of these orders; (c) Appeal dismissed; (d) The claimant to pay the opponent’s costs of the summons for leave to appeal and the appeal.
CATCHWORDS:	PROCEDURE – costs – departing from the general rule – conduct of parties – offer of compromise – whether offer of compromise made less than two months before the date of commencement of the trial had been left open for a reasonable time – whether the reasonableness of the time for which an offer is left open for acceptance is assessed as at the date the offer is made or having regard to circumstances both before and after that date
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CASES CITED:	Hillier v Sheather (1995) 36 NSWLR 414, 422 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Leda v Weerden (No 3) [2006] NSWSC 220 Morgan v Johnson [1998] NSWSC 367; (1998) 44 NSWLR 578 New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 South Eastern Sydney Area Health Service v King [2006] NSWCA 2
PARTIES:	Nazzareno Pittorino Sharmain Yates
FILE NUMBER(S):	CA 40901/07
COUNSEL:	Cl: L King SC Opp: H Kelly SC
SOLICITORS:	Cl: Moray & Agnew, Newcastle Opp: Stacks, Coolangatta
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 36/2006
LOWER COURT JUDICIAL OFFICER:	Blanch CJ
LOWER COURT DATE OF DECISION:	23 November 2007