Davis v Swift (No 2) [2015] NSWCA 137

Davis v Swift (No 2) [2015] NSWCA 137

The Offer of Compromise did not comply with UCPR r 20.26 as it did not indicate if it was inclusive of interim payments under ss 83 and 84A of the Motor Accidents Compensation Act 1999 (NSW), thus the related cost consequences did not apply. The Calderbank offer was a genuine offer but did not justify indemnity costs as it did not foreshadow that consequence. The proper exercise of costs discretion was that each party should bear ordinary costs up to the expiry of the Calderbank offer and be liable for the other's costs thereafter, with only partial appellate costs ordered to reflect divided success.

Parties
Appellant: Carolyn Davis; Respondent: Deborah Swift
Jurisdiction
Australia
Judgment Date
21 May 2015
Procedural Posture
Appeal / Costs Decision Following Appeal Judgment
Outcome
Costs orders varied; costs awarded to both parties in part
Legal Topics
Offer of Compromise, Calderbank Letter, Uniform Civil Procedure Rules, Motor Accidents Compensation
Costs Offer of Compromise Calderbank Letter Uniform Civil Procedure Rules Motor Accidents Compensation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 14 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Carolyn Davis

Appellant

Deborah Swift

Respondent

Procedural Posture

Appeal / Costs Decision Following Appeal Judgment

Legal Issues

  1. 1 Whether the Offer of Compromise complied with UCPR r 20.26 as in force in November 2012, in the context of interim payments under s 83 and s 84A of the Motor Accidents Compensation Act 1999 (NSW)
  2. 2 Whether the pre-trial Calderbank letter was a genuine offer of compromise and its impact on costs
  3. 3 The appropriateness of costs orders in light of statutory and discretionary factors

Ratio Decidendi

The Offer of Compromise did not comply with UCPR r 20.26 as it did not indicate if it was inclusive of interim payments under ss 83 and 84A of the Motor Accidents Compensation Act 1999 (NSW), thus the related cost consequences did not apply. The Calderbank offer was a genuine offer but did not justify indemnity costs as it did not foreshadow that consequence. The proper exercise of costs discretion was that each party should bear ordinary costs up to the expiry of the Calderbank offer and be liable for the other's costs thereafter, with only partial appellate costs ordered to reflect divided success.

Court Disposition

Costs orders varied; costs awarded to both parties in part

Orders

  • The respondent pay the appellant's costs of the proceedings in the District Court up to and including 26 April 2013 assessed on the ordinary basis.
  • The appellant pay the respondent's costs of the proceedings in the District Court after 26 April 2013 assessed on the ordinary basis.