ATKINSON v ZEY; ZEY v ATKINSON [2008] NSWCA 30

ATKINSON v ZEY; ZEY v ATKINSON [2008] NSWCA 30

The trial judge erred by including the plaintiff's costs to the date of the offer when assessing whether the judgment exceeded the offer of compromise. Costs to the date of the offer should not be included, and the proper costs order is that each party bears the other's costs up to and after the offer date, assessed on a party and party basis, with relevant dispensations from the UCPR as to indemnity costs.

Parties
Applicant / Respondent: Lindsay John Atkinson; Respondent / Applicant: Eedra Elizabeth Zey
Jurisdiction
Australia
Judgment Date
13 March 2008
Procedural Posture
Civil Appeal / Court of Appeal Judgment Following Applications for Leave to Appeal and Costs Orders
Outcome
Mr Atkinson's application for leave to appeal and appeal in respect of the costs order of 27 April 2007 is allowed; Ms Zey's application for leave to appeal is dismissed.
Legal Topics
Costs Consequences of Offers of Compromise, Extension of Time for Service, Application of Transitional Rules, Discontinuance and Costs, Dispensing With Rule Requirements
Civil Procedure Costs Costs Consequences of Offers of Compromise Extension of Time for Service Application of Transitional Rules Discontinuance and Costs Dispensing With Rule Requirements

Case Brief

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Parties

Lindsay John Atkinson

Applicant / Respondent

Eedra Elizabeth Zey

Respondent / Applicant

Procedural Posture

Civil Appeal / Court of Appeal Judgment Following Applications for Leave to Appeal and Costs Orders

Legal Issues

  1. 1 Whether costs to date of offer of compromise should be included in comparing offer with judgment
  2. 2 Whether to dispense with costs consequences under Uniform Civil Procedure Rules for offer made under prior rules
  3. 3 Whether to extend time for service of holding summons

Ratio Decidendi

The trial judge erred by including the plaintiff's costs to the date of the offer when assessing whether the judgment exceeded the offer of compromise. Costs to the date of the offer should not be included, and the proper costs order is that each party bears the other's costs up to and after the offer date, assessed on a party and party basis, with relevant dispensations from the UCPR as to indemnity costs.

Court Disposition

Mr Atkinson's application for leave to appeal and appeal in respect of the costs order of 27 April 2007 is allowed; Ms Zey's application for leave to appeal is dismissed.

Orders

  • Extend time for service of holding summons to date of receipt by the respondent's legal representative.
  • Grant leave to appeal costs order of 27 April 2007.