Sydney Harbour Foreshore Authority v Perrett (No 2)

[2011] NSWCA 44

Court of Appeal

New South Wales

Case Title:	Sydney Harbour Foreshore Authority & Anor v Perrett & Anor (No 2)
Medium Neutral Citation:	[2011] NSWCA 44
Hearing Date(s):	On the papers
Decision Date:	10 March 2011
Jurisdiction:
Before:	Tobias JA; McColl JA; Handley AJA
Decision:	Motion of 5 October 2010 dismissed with costs. [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 - indemnity costs - Calderbank offer - whether genuine compromise
Legislation Cited:
Cases Cited:	Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 Leichhardt Municipal Council v Green [2004] NSWCA 341
Texts Cited:
Category:	Costs
Parties:	Sydney Harbour Foreshore Authority - First Appellant Darling Harbour Convention and Exhibition Pty Ltd - Second Appellant Ian Douglas Perrett - First Respondent Wine & Vine Personnel Pty Ltd - Second Resondent
Representation
- Counsel:	Counsel: CT Barry QC with G Doherty - Appellant BW Rayment QC with JC Rowe - First Respondent SG Campbell SC with MJ Jenkins - Second Respondent
- Solicitors:	Solicitors: HWL Ebsworth - Appellants Miller Noyce - First Respondent Turks Legal - Second Respondent
File number(s):	CA 08/289604
Publication Restriction:

Judgment

1. THE COURT: On 23 September 2010 the Court, as presently constituted, dismissed with costs an appeal by the owner and occupier of the Darling Harbour Convention Centre from the judgment of McCallum J in favour of the first respondent, a lawful entrant, and his employer. The appeal was heard on 2 September.

1. On 5 October, within time, the first respondent filed a notice of motion seeking an order that his costs of the appeal payable by the appellants be assessed on an indemnity basis. No such application has been made by the second respondent.

1. The application was based partly on a Calderbank offer made by the first respondent's solicitors and its refusal, and partly on what was said to be the obvious lack of merit in the appeal.

1. The judgment of McCallum J was delivered on 30 September 2009 and the appeal was heard approximately 11 months later. The offer was made on 15 March 2010 after the appellants had filed and served their written submissions but before the first respondent had filed and served his. The offer claimed that the appeal was without substance because the findings of fact could not be disturbed and ss 5F and 5G of the Civil Liability Act did not compel a different outcome.

1. The letter contained an offer, open for 14 days, for the appeal against the first respondent to be discontinued with no order as to costs. Nothing was said about the appeal against the other respondent.

1. The appeal failed but the Court called on counsel for the respondents and reserved its judgment. In our opinion the appeal was not so completely devoid of merit as to warrant an order for indemnity costs on that ground alone.

1. The Calderbank offer of 15 March 2010 embodied an element of compromise because the first respondent agreed to bear his own costs of the appeal. Nothing was said about the second respondent's costs.

1. There would be little point in discontinuing against the first respondent and continuing with the appeal against the second. On the other hand discontinuance against both respondents would have made the appellants liable for the costs of the second respondent.

1. The element of compromise in the offer was extremely modest. The work done by the first respondent's solicitor in the appeal up to that stage included perusing the notice of appeal, entry of an appearance, checking the red appeal book for omissions, perusing the appellants' written submissions and taking instructions for the offer.

1. The evidence does not include any estimate of those party and party costs but they must have been a tiny fraction of the judgment in favour of the first respondent for $735,667.07 and interest and an even smaller fraction of that amount together with the plaintiff's costs of the trial.

1. This Court has held that formal and Calderbank offers are only effective for costs purposes if they embody a genuine compromise: Leichhardt Municipal Council v Green [ 2004] NSWCA 341 at [23]-[24], [27]; and Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 at [4]-[5].

1. In our judgment the first respondent's offer to bear his own costs of the appeal did not involve a real or genuine compromise of his claims.

1. The motion of 5 October 2010 is dismissed with costs.

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