South Sydney Council v Morris (No 2)

[2000] NSWCA 216

CITATION:	South Sydney Council v Morris (No 2) [2000] NSWCA 216
FILE NUMBER(S):	CA 40263/99
HEARING DATE(S):	Decided on written submissions
JUDGMENT DATE:	16 August 2000
PARTIES :	South Sydney Council (Appellant) Teresa Morris (Respondent)
JUDGMENT OF:	Meagher JA at 1; Fitzgerald JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5713/96
LOWER COURT JUDICIAL OFFICER :	Moore DCJ

COUNSEL:	S Rares SC/ V M Heath (Appellant) C Evatt (Respondent)
SOLICITORS:	Phillips Fox Lawyers (Appellant) Newman & Associates (Respondent)
DECISION:	(1) The application for indemnity costs made by the respondent be adjourned pending the outcome of the trial judge's consideration of costs. (2) The costs of the application to date are reserved.

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40263/99
DC 5713/96

MEAGHER JA
FITZGERALD JA
HEYDON JA

Wednesday, 16 August 2000

SOUTH SYDNEY COUNCIL v Teresa MORRIS [No 2]
JUDGMENT (On Costs)

1    MEAGHER JA: I agree with Heydon JA.

2    FITZGERALD JA: I agree with Heydon JA.

3    HEYDON JA:

On 28 June 2000 the court announced that it dismissed the appeal with costs. The respondent indicated that she wished to contend that there should be an indemnity costs order in her favour, and the parties have filed written submissions about this as directed.

4    The respondent submitted she was entitled to an indemnity costs order in relation to the costs of the appeal on two grounds.

29 May 2000 Offer

5    The appeal was listed for hearing on 30 May 2000. At about 6 pm on 29 May 2000 counsel for the respondent made an offer to counsel for the appellant to the effect that if the appeal were brought to an end, the respondent would accept $150,000 plus costs. This represented a saving to the appellant of $20,376.90.

6    The respondent submitted that had the offer been accepted it would have avoided the hearing of the appeal and the preparation of written reasons for judgment.

7    That is true, but the offer was made too late to have caused any significant reduction in the costs of the hearing incurred by the parties if it had been accepted.

Pre-Trial Offers of 12 December 1997 and 28 April 1998 pursuant to Part 19A of the District Court Rules

8    The respondent submitted that though these offers (to settle for $6,000 plus costs) were made before the trial, they can affect the costs of the appeal. The trial judge has reserved judgment on the question of what costs order should be made in relation to the trial. In those circumstances, my opinion is that a decision on the present application should not be made until the trial judge delivers judgment on that question.

9    I would propose that no change be made to the orders announced on 28 June 2000. The orders I favour are:

1. The application for indemnity costs made by the respondent be adjourned pending the outcome of the trial judge’s consideration of costs.

2. The costs of the application to date are reserved.

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