Prior v Brown (No 2)

[2013] NSWCA 85

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Prior v Brown (No 2) [2013] NSWCA 85

Hearing dates:

On the papers

Decision date:

18 April 2013

Before:

Basten JA;
Hoeben CJ at CL;
Ward JA

Decision:

In addition to the order dismissing the appeal made on 6 February 2013, the Court makes the following order:

The appellant is to pay the respondent's costs of the appeal, to be assessed:

(a) up to and including 14 March 2012, on the ordinary basis, and

(b) on and from 15 March 2012, on the indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - offer of compromise - indemnity costs - no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A, 51.47

Cases Cited:

Prior v Brown [2013] NSWCA 4

Category:

Consequential orders

Parties:

Helen Terese Prior (Appellant)
Leonard Graham Brown (Respondent)

Representation:

Counsel:

Mr J Millar (Respondent)
Solicitors:

Peter Cornock & Associates (Appellant)
Swaab Attorney (Respondent)

File Number(s):

CA 2012/21444

 Decision under appeal 

Jurisdiction:

9111

Citation:

Prior v Brown [2011] NSWSC 1006

Date of Decision:

2011-10-14 00:00:00

Before:

Hallen AsJ

File Number(s):

SC 2007/4969

Judgment

1. THE COURT: The appeal brought from the judgment of Hallen AsJ in the Equity Division was dismissed on 6 February 2013: Prior v Brown [2013] NSWCA 4. In delivering judgment, the Court noted that the respondent had indicated that he wished to make submissions in respect of costs in the event that the appeal was dismissed: at [25]. The respondent was given leave to make such application as he wished within 14 days, the appellant have 14 days to reply.

1. On 20 February 2013 the respondent sought an order that the appellant pay his costs to be assessed on the ordinary basis up to and including 14 March 2012 and thereafter on an indemnity basis. In support of that application he relied upon an offer of compromise served on the appellant on 14 March 2012.

1. The orders made at trial had two relevant parts. First, the respondent was required to pay the appellant the sum of $180,000. That sum had been paid prior to the offer of compromise of 14 March 2012.

1. The second effect of the orders made at trial was to confer on the appellant an option to purchase the respondent's interest in a property at Kellyville for an amount of $103,500. Upon payment of that sum and discharge of the existing mortgage over the property, the respondent was to transfer title in the property to the appellant. In the event that the appellant did not exercise the option or was unable to discharge the mortgage, the property was to be sold and the net proceeds of sale divided equally between the parties.

1. The respondent's offer of compromise in respect of the appeal required him to transfer the Kellyville property to the appellant upon discharge of the existing mortgage. In the alternative, the property was to be sold with the net proceeds being paid solely to the appellant. The offer involved a significant element of compromise in that the respondent offered to forego his entitlement under the existing orders to payment of $103,500 or, in the event of sale, recovery of half the net proceeds.

1. The offer was open for 30 days, but was not accepted. Rather, although it is not presently material, the appellant served a counter offer which was identical to the respondent's offer except that it required him to pay her an additional sum of $95,000. He did not accept that offer.

1. The relevant consideration for present purposes is that, the appeal having been dismissed, the respondent obtained a judgment more favourable to him than the terms of his offer.

1. The appellant did not avail herself of the opportunity to respond to the application. The respondent asserts, and there is no reason to doubt, that the offer was in conformity with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). Those rules apply in this Court: r 51.47. The respondent's submission that he has satisfied the requirements of r 42.15A and is therefore entitled to an order that his costs be assessed on an indemnity basis from the day following that on which the offer was made should be accepted. No reason is demonstrated for the Court to order otherwise.

1. In addition to the order dismissing the appeal made on 6 February 2013, the Court should make the following order:

The appellant is to pay the respondent's costs of the appeal, to be assessed:

(a) up to and including 14 March 2012, on the ordinary basis, and

(b) on and from 15 March 2012, on the indemnity basis.

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