Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Hearing dates:
15 March 2013
Decision date:
25 June 2013
Before:
Bathurst CJ at [1]; Beazley P at [46]; McColl JA at [47]; Barrett JA at [48]; Emmett JA at [62]
Decision:
1 Appeal allowed.
2 Orders 2, 3, 4 and 5 of the orders made by Adams J on 23 February 2012 be set aside.
3 Orders 1, 2, 3 and 4 of the orders made by Adams J on 31 May 2012 be set aside.
4 In lieu of the orders made by Adams J, order:
(a) The respondent's summons for leave to appeal from the Local Court of NSW be dismissed.
(b) The respondent to pay the appellant's costs of the proceedings.
5 The respondent to pay the appellant's costs of the application for leave to appeal and the appeal.
[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 - offer of compromise - Uniform Civil Procedure Rules 2005 (UCPR) r 20.26 - compliance with UCPR - whether an offer including "costs as agreed or assessed" is an offer exclusive of costs.
COSTS - indemnity costs - offer of compromise - Uniform Civil Procedure Rules 2005 (UCPR) r 20.26 - whether a non-compliant offer can take effect as a Calderbank offer.
[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
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Case
[2013] NSWCA 188
Decision Date
CaseChat Overview and Summary
The appeal concerned the interpretation of an offer of compromise made by the respondent, Dream Developments Pty Ltd, to the appellant, Whitney, under Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The primary dispute revolved around whether the offer, which included the phrase "costs as agreed or assessed," constituted an offer exclusive of costs, thereby potentially entitling the respondent to indemnity costs if the appellant did not achieve a more favourable outcome at trial. The matter was heard in the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were twofold. Firstly, the court was required to determine whether an offer of compromise that stipulated "costs as agreed or assessed" was compliant with Rule 20.26, specifically whether it was an offer exclusive of costs as contemplated by the rule. Secondly, the court had to consider whether a non-compliant offer of compromise could nonetheless be given effect as a *Calderbank* offer, thereby potentially attracting indemnity costs.
The Court of Appeal reasoned that an offer of compromise under Rule 20.26 must be exclusive of costs to attract the cost consequences stipulated in the rule. The phrase "costs as agreed or assessed" was found not to be an offer exclusive of costs, as it did not clearly indicate that the offer was made without regard to the costs of the proceedings. Consequently, the offer did not comply with the requirements of Rule 20.26. The court further held that while a non-compliant offer might be considered as a *Calderbank* offer, the specific offer in this case did not meet the criteria for a *Calderbank* offer to warrant indemnity costs.
The appeal was allowed, and the orders made by Adams J on 23 February 2012 and 31 May 2012 were set aside. In their place, the Court of Appeal ordered that the respondent's summons for leave to appeal from the Local Court of NSW be dismissed, and that the respondent pay the appellant's costs of the proceedings and the application for leave to appeal and the appeal.
Orders
Orders of the court
1 Appeal allowed.
2 Orders 2, 3, 4 and 5 of the orders made by Adams J on 23 February 2012 be set aside.
3 Orders 1, 2, 3 and 4 of the orders made by Adams J on 31 May 2012 be set aside.
4 In lieu of the orders made by Adams J, order:
(a) The respondent's summons for leave to appeal from the Local Court of NSW be dismissed.
(b) The respondent to pay the appellant's costs of the proceedings.
5 The respondent to pay the appellant's costs of the application for leave to appeal and the appeal.
[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.]