Special leave refused with costs by the High Court - 3 August 2007
New South Wales
Court of Appeal
CITATION:
Thomas William Vale v Timothy David Eggins (No 2) [2007] NSWCA 12
JUDGMENT DATE:
15 February 2007
JUDGMENT OF:
Beazley JA at 1; McColl JA at 26; Bryson JA at 27
DECISION:
The respondent to pay the appellant’s costs at trial and on the appeal.
CATCHWORDS:
COSTS – offer of compromise made in accordance with Pt 19A of the District Court Rules– consequences of refusal to accept offer of compromise – result to offeree less favourable than terms of offer – exceptional case and the avoidance of substantial injustice – failure to serve expert reports prior to offer being made - relevant to decision whether to accept offer – significant change in case after offer made
Thomas William Vale (Appellant) Timothy David Eggins (Respondent)
FILE NUMBER(S):
CA 40967/05
COUNSEL:
L T Grey (Appellant) K Rewell SC; M Cleary (Respondent)
SOLICITORS:
McClellands Lawyers (Appellant) T L Lawyers (Respondent)
- 4 -
CA 40967/05
BEAZLEY JA McCOLL JA BRYSON JA
15 February 2007
THOMAS WILLIAM VALE v TIMOTHY DAVID EGGINS (No 2)
Judgment
1 BEAZLEY JA: The Court gave judgment in this matter on 11 December 2006, in which it allowed the appellant’s appeal and ordered a verdict and judgment in favour of the appellant. Damages had been agreed between the parties, so that the judgment sum ordered in favour of the appellant, after taking into account the Court’s assessment of contributory negligence at 75 per cent was $925,000 together with interest calculated from the date of trial.
2 The Court reserved the question of costs to allow the parties to make written submissions in respect of the appropriate costs order. The respondent now seeks an order for costs in his favour, both of the trial from 19 February 2005, being the day after he made offers of compromise to the appellant, and of the appeal.
Offers of compromise
3 The respondent served two separate offers of compromise upon the appellant on 18 February 2005, in accordance with Pt 19A of the District Court Rules1973 (NSW) (the DCR). The first offer was to compromise the issue of liability on terms that the appellant was to be held 70 per cent responsible for the accident and the respondent 30 per cent responsible (the liability offer).
4 The…
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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AGLC
Vale v Eggins (No 2) [2007] NSWCA 12
Case
[2007] NSWCA 12
Decision Date
CaseChat Overview and Summary
In *Vale v Eggins (No 2)*, the dispute concerned the consequences of a party refusing an offer of compromise made in accordance with Part 19A of the District Court Rules. The appeal was heard by Beazley JA, McColl JA, and Bryson JA.
The primary legal issue before the Court of Appeal was whether the respondent, who had refused an offer of compromise and subsequently obtained a less favourable result at trial, should be ordered to pay the appellant's costs. This required the court to consider the application of the costs rules under Part 19A, particularly in light of the respondent's argument that there were exceptional circumstances justifying a departure from the usual order. The court also had to assess the relevance of the failure to serve expert reports prior to the offer being made and any significant changes in the case after the offer was extended.
The Court of Appeal determined that the respondent's failure to serve expert reports before the offer of compromise was made was a significant factor. This failure meant the respondent was not in a position to properly assess the offer, and it was relevant to the decision of whether to accept it. Furthermore, the court found that there had not been a significant change in the case after the offer was made that would justify the respondent's refusal. Consequently, the usual consequences of refusing an offer of compromise, which are less favourable than the offer's terms, were applied.
The Court of Appeal ordered that the respondent pay the appellant's costs at trial and on the appeal.
Orders
Orders of the court
The respondent to pay the appellant's costs at trial and on the appeal.