GIO v Nathan FOSSE (by his next friend Earl Patrick FOSSE) [1999] NSWCA 356

GIO v Nathan FOSSE (by his next friend Earl Patrick FOSSE) [1999] NSWCA 356

The accepted offer of compromise for $2,325,000 plus costs, once approved by the Court and entered as judgment, covered both damages and costs; accordingly, it precluded the application of Part 52A Rule 22 concerning indemnity costs, and the Master was wrong to order indemnity costs.

Jurisdiction
Australia
Judgment Date
24 September 1999
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Indemnity Costs / Court of Appeal; Leave to Appeal Granted and Appeal Upheld
Outcome
Leave to appeal granted; appeal upheld with costs; indemnity costs order set aside; respondent to have a certificate under the Suitors' Fund Act 1951 if qualified.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'party and Party Costs' 'court Approval of Settlement for Disabled Person' 'scr Part 52 a Rule 22']
['civil Procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'party and Party Costs' 'court Approval of Settlement for Disabled Person' 'scr Part 52 a Rule 22']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Indemnity Costs / Court of Appeal; Leave to Appeal Granted and Appeal Upheld

Legal Issues

  1. 1 ['Whether acceptance of an offer of compromise expressed as $2,325,000 plus costs, followed by Court approval and judgment, precluded application of Part 52A Rule 22 of the Supreme Court Rules concerning indemnity costs.']

Ratio Decidendi

The accepted offer of compromise for $2,325,000 plus costs, once approved by the Court and entered as judgment, covered both damages and costs; accordingly, it precluded the application of Part 52A Rule 22 concerning indemnity costs, and the Master was wrong to order indemnity costs.

Court Disposition

Leave to appeal granted; appeal upheld with costs; indemnity costs order set aside; respondent to have a certificate under the Suitors' Fund Act 1951 if qualified.

Orders

  • ['Leave to appeal be granted and the appeal be upheld with costs.' "That the order made by the Master that the claimant pay the opponent's costs on an indemnity basis as from 30 July 1997 and the costs of the motion dated 20 January 1999 on a party and party basis be set aside." "Respondent to have a certificate...