Erect Safe Scaffolding (Australia) Pty Limited v Sutton & Anor (No 2) [2008] NSWCA 289

Erect Safe Scaffolding (Australia) Pty Limited v Sutton & Anor (No 2) [2008] NSWCA 289

The substituted judgment should take effect on 14 December 2006, leaving interest to be recovered as post-judgment interest under s 101 rather than included in the judgment. The offer of compromise sent to Australand was ineffective because it plainly required Erect Safe to pay the offered sum and Australand was not required to treat it as corrected. The offer to Erect Safe was effective: Mr Sutton was entitled to recover the full damages from Erect Safe notwithstanding apportionment, the proper comparison included notional interest to the offer date and showed Mr Sutton bettered the offer, and Erect Safe's partial success on appeal was not enough to justify an order otherwise. Mr Sutton...

Jurisdiction
Australia
Judgment Date
11 November 2008
Procedural Posture
Civil Appeal and Cross Appeal / Determination on Written Submissions Following Publication of Reasons, Concerning Interest and Costs
Outcome
Appeal and cross-appeal allowed in part; judgment reduced and costs and interest-related orders made.
Legal Topics
['post Judgment Interest' 'offers of Compromise' 'indemnity Costs' 'appeal Costs' 'variation of Judgment on Appeal']
['civil Procedure' 'costs' 'interest'] ['post Judgment Interest' 'offers of Compromise' 'indemnity Costs' 'appeal Costs' 'variation of Judgment on Appeal']

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Procedural Posture

Civil Appeal and Cross Appeal / Determination on Written Submissions Following Publication of Reasons, Concerning Interest and Costs

Legal Issues

  1. 1 ["Whether the substituted judgment for $601,568.53 should take effect from the date of the trial judge's judgment so that interest is payable under s 101 of the Civil Procedure Act 2005." "Whether Mr Sutton's offer of compromise to Australand was effective where it stated that Erect Safe would pay the sum offered." "Whether Mr Sutton's offer of compromise to Erect Safe entitled him to indemnity costs from 7 January 2008." 'How interest should be treated when comparing an appeal judgment with a post-judgment offer of compromise.']

Ratio Decidendi

The substituted judgment should take effect on 14 December 2006, leaving interest to be recovered as post-judgment interest under s 101 rather than included in the judgment. The offer of compromise sent to Australand was ineffective because it plainly required Erect Safe to pay the offered sum and Australand was not required to treat it as corrected. The offer to Erect Safe was effective: Mr Sutton was entitled to recover the full damages from Erect Safe notwithstanding apportionment, the proper comparison included notional interest to the offer date and showed Mr Sutton bettered the offer, and Erect Safe's partial success on appeal was not enough to justify an order otherwise. Mr Sutton...

Court Disposition

Appeal and cross-appeal allowed in part; judgment reduced and costs and interest-related orders made.

Orders

  • ['Appeal and cross-appeal allowed in part.' 'Set aside the judgment for $663,369.77 and in lieu thereof verdict and judgment for $601,568.53 taking effect on 14 December 2006.' "Subject to order 4, set aside any order that Erect Safe pay Australand's costs in the District Court to the extent of the costs referred to...