Gillett v Amaca [2002] NSWCC 33

Gillett v Amaca [2002] NSWCC 33

The plaintiff's death did not create a hiatus suspending the time for acceptance of the offer of compromise. Because the executor was substituted under Pt 8 r 10, Pt 8 r 11(2) applied so that prior steps in the proceedings continued to have effect in relation to the substituted plaintiff, and the defendants were not entitled to judgment based on the purported acceptance of the 13 July 2001 offer.

Jurisdiction
Australia
Judgment Date
19 July 2002
Procedural Posture
Motion for Judgment in Accordance With an Offer of Compromise in Asbestos Related Injury Proceedings / Compensation Court of New South Wales Motion After Substitution of Executor as Plaintiff
Outcome
Defendants' motion dismissed.
Legal Topics
['offer of Compromise' 'substitution of Parties After Death' 'time for Acceptance of Offer' 'costs of Motion']
['civil Procedure' 'compensation' 'succession'] ['offer of Compromise' 'substitution of Parties After Death' 'time for Acceptance of Offer' 'costs of Motion']

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Procedural Posture

Motion for Judgment in Accordance With an Offer of Compromise in Asbestos Related Injury Proceedings / Compensation Court of New South Wales Motion After Substitution of Executor as Plaintiff

Legal Issues

  1. 1 ["Whether the defendants could accept the plaintiff's 13 July 2001 offer of compromise after the plaintiff's death and after substitution of the executor as plaintiff." 'Whether the death of the plaintiff created a hiatus so that time for acceptance of the offer stopped running until substitution of the legal personal representative.' 'Whether judgment should be entered for the plaintiff in accordance with the offer of compromise.']

Ratio Decidendi

The plaintiff's death did not create a hiatus suspending the time for acceptance of the offer of compromise. Because the executor was substituted under Pt 8 r 10, Pt 8 r 11(2) applied so that prior steps in the proceedings continued to have effect in relation to the substituted plaintiff, and the defendants were not entitled to judgment based on the purported acceptance of the 13 July 2001 offer.

Court Disposition

Defendants' motion dismissed.

Orders

  • ['The motion for judgment in accordance with the 13 July 2001 offer of compromise is dismissed.' "The second defendant is to pay the plaintiff's costs of the motion."]