Richardson v Hough - [1999] NSWSC 448

CITATION: Richardson v Hough [1999] NSWSC 448

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1028/95

HEARING DATE(S): 23/04/1999

JUDGMENT DATE:
12 May 1999

PARTIES :

Anthony Charles Richardson (P)
Elaine Margaret Maria Hough (D)

JUDGMENT OF: Santow J

COUNSEL : M J Stevens (P)
J Millar (D)

SOLICITORS: John R Quinn & Co (P)
Kearns & Garside (D)

CATCHWORDS: COSTS — Offer of Compromise — Onus to demonstrate satisfaction of Pt 52A r22(6) — Offer construed as inclusive of costs where silent as to costs.

ACTS CITED: Supreme Court Act s76
Supreme Court Rules Pt 22 r1A
Pt 52A r21
r22

CASES CITED: Associated Confectionery (Aust) Ltd v Mineral & Chemical Traders Pty Ltd (1991) 25 NSWLR 349
McLean v Commonwealth of Australia (NSWSC
Sperling J
22 August 1996
unreported)

DECISION: Ordered that no order as to costs be made.

- 3 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY
SANTOW J
No. 1028/95

ANTHONY CHARLES RICHARDSON
Plaintiff
ELAINE MARGARET MARIA HOUGH
Defendant

JUDGMENT
12 May 1999
1 The only remaining matter is the appropriate orders to be made in relation to costs, following orders on the remaining issues made by Windeyer J on 13 November 1998.
2 At the conclusion of my judgment of 7 September 1998 I indicated that my present inclination “is to make no order as to costs” though giving leave to the parties to address me on costs if they wished. That has now occurred and the Defendant in particular has submitted that by virtue of the correspondence in DCX1 cost orders should be made, either under or as if in accordance with Pt 22 in conjunction with Pt 52A r21 of the Supreme Court Rules. The correspondence contains what is described as an “offer of compromise” first made by the Defendant on 11 October 1995 and expressed in these terms:
“1. That the defendant pay to the plaintiff the sum of FIFTY THOUSAND DOLLARS ($50,000.00) in full satisfaction of the plaintiff’s claim.
2. That this offer remains open for a period of twenty-eight (28) days from the date it is served upon the plaintiff.”
3 On 17 January 1996 an identical offer was made save that $60,000 was substituted for $50,000. In the events that happened neither offer was accepted. The Defendant then points to the fact that what the Plaintiff derived from the Court’s order, namely 42/87ths of the proceeds of sale of the Dapto property ($73,258.14 with interest), amounted to the sum of $35,366.14 and that this self-evidently is substantially less than the $50,000 offered.
4 The Defendant contends that the offer of compromise though silent as to costs and not expressed as required by Pt 22 r1A, as “prepared in accordance with this Division” must impliedly be understood as an offer that costs be dealt with, as they would have been dealt with, pursuant to Pt 52A r22(1). That is to say, in conformity with that rule, the Defendant was impliedly offering that costs would be paid by the Defendant…

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.

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Details

Case: [1999] NSWSC 448
Decision Date: 12 May 1999

CaseChat Overview and Summary

In the matter of Richardson v Hough, the court was presented with a dispute concerning the application of costs under the Uniform Civil Procedure Rules 2005 (NSW). The case involved a claim for damages related to an alleged breach of contract. The plaintiff, Richardson, sought costs from the defendant, Hough, under the rules pertaining to offers of compromise. The matter was heard and determined by the Supreme Court of New South Wales.

The central legal issue before the court was whether the onus of demonstrating satisfaction with the terms of the offer of compromise, as outlined in Part 52A rule 22(6) of the Uniform Civil Procedure Rules 2005 (NSW), rested on the party making the offer or the party receiving it. The court was required to interpret the rules and consider whether an offer of compromise that did not explicitly address costs could be construed as inclusive of those costs.

The court held that the onus was on the party who received the offer of compromise to demonstrate that they were satisfied with the terms, including costs, if the offer did not explicitly exclude them. The court reasoned that the language of the rules was clear and placed the onus on the receiving party to prove satisfaction with all terms of the offer, including any implied costs. The court also noted that the rules were designed to encourage settlement and that parties should be aware of the implications of their offers. Consequently, the court found that the plaintiff had discharged the onus and was entitled to costs.

The final orders of the court reflected its reasoning, awarding costs to the plaintiff from the defendant. The court determined that the defendant's failure to explicitly exclude costs in the offer of compromise meant that the plaintiff was entitled to include costs in their assessment of the offer's terms.

Orders