Arnott v Choy (No 2) [2010] NSWCA 336

Arnott v Choy (No 2) [2010] NSWCA 336

Section 152(2) of the Motor Accidents Compensation Act 1999 (NSW) does not, by referring to the rules of court concerning offers of compromise, exclude the application of common law Calderbank principles. In the circumstances, the appellant's offer was a genuine and reasonable compromise, exceeded the final award by 35 per cent, the respondent had sufficient time and legal representation to assess it, and its rejection was unreasonable; indemnity costs from 2 July 2009 were therefore warranted.

Jurisdiction
Australia
Judgment Date
07 December 2010
Procedural Posture
Consequential Orders as to Costs in a Motor Accident Personal Injury Damages Appeal / Court of Appeal, on the Papers, After Appeal and Cross Appeal
Outcome
The appellant obtained costs of the appeal on the ordinary basis up to and including 2 July 2009 and on an indemnity basis thereafter; each party was to bear his own costs of the cross-appeal; the respondent was granted a Suitor's Fund Act certificate.
Legal Topics
['calderbank Offers' 'offers of Compromise' 'indemnity Costs' 'costs Following the Event' "suitor's Fund Certificate"]
['procedure' 'costs' 'motor Accidents Compensation' 'personal Injury'] ['calderbank Offers' 'offers of Compromise' 'indemnity Costs' 'costs Following the Event' "suitor's Fund Certificate"]

Case Brief

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Procedural Posture

Consequential Orders as to Costs in a Motor Accident Personal Injury Damages Appeal / Court of Appeal, on the Papers, After Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether a Calderbank letter may be relied upon in proceedings under the Motor Accidents Compensation Act 1999 (NSW).' 'Whether s 152 of the Motor Accidents Compensation Act 1999 (NSW) precludes the Court from applying common law principles concerning the costs consequences of rejecting a Calderbank offer.' "Whether the respondent's rejection of the appellant's Calderbank offer was unreasonable so as to warrant indemnity costs from 2 July 2009."]

Ratio Decidendi

Section 152(2) of the Motor Accidents Compensation Act 1999 (NSW) does not, by referring to the rules of court concerning offers of compromise, exclude the application of common law Calderbank principles. In the circumstances, the appellant's offer was a genuine and reasonable compromise, exceeded the final award by 35 per cent, the respondent had sufficient time and legal representation to assess it, and its rejection was unreasonable; indemnity costs from 2 July 2009 were therefore warranted.

Court Disposition

The appellant obtained costs of the appeal on the ordinary basis up to and including 2 July 2009 and on an indemnity basis thereafter; each party was to bear his own costs of the cross-appeal; the respondent was granted a Suitor's Fund Act certificate.

Orders

  • ["The respondent shall pay the appellant's costs of the appeal, including the costs of this application, to be assessed up to and including 2 July 2009 on the ordinary basis and thereafter on an indemnity basis." 'Each party shall pay his own costs of the cross-appeal.' "The respondent shall have a certificate under...