Heather Alison Maciver v Hilton Nursing Home Pty Limited [2001] NSWIRComm 56

Heather Alison Maciver v Hilton Nursing Home Pty Limited [2001] NSWIRComm 56

The defect in the respondent's offer of compromise, namely the absence of a statement under Rule 166(2)(b), is an irregularity curable under s170 of the Industrial Relations Act 1996 and Rule 88. The applicant is estopped from relying on the defect at this stage due to not having previously raised it. Even if the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 May 2001
Procedural Posture
Application Under Section 106 and Recovery of Money Under Section 365 of the Industrial Relations Act 1996 / Post Appeal Remittal Regarding Costs Order
Outcome
Costs ordered as sought by respondent; slip rule correction granted.
Legal Topics
['costs' 'offer of Compromise' 'calderbank Offers' 'procedural Irregularity' 'slip Rule']
['industrial Relations' 'civil Procedure'] ['costs' 'offer of Compromise' 'calderbank Offers' 'procedural Irregularity' 'slip Rule']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Application Under Section 106 and Recovery of Money Under Section 365 of the Industrial Relations Act 1996 / Post Appeal Remittal Regarding Costs Order

Legal Issues

  1. 1 ["Whether the respondent's offer of compromise, lacking a mandatory statement under Rule 166, can entitle the respondent to a costs order under Rule 216" 'Whether the procedural defect in the offer can be cured, or considered on a Calderbank basis' 'Correction of an order under slip rule']

Ratio Decidendi

The defect in the respondent's offer of compromise, namely the absence of a statement under Rule 166(2)(b), is an irregularity curable under s170 of the Industrial Relations Act 1996 and Rule 88. The applicant is estopped from relying on the defect at this stage due to not having previously raised it. Even if the defect were not curable, the offer may be considered on a Calderbank basis, justifying a costs order in the respondent's favour as the applicant ultimately recovered less than was offered prior to trial.

Court Disposition

Costs ordered as sought by respondent; slip rule correction granted.

Orders

  • ["The Respondent pay the Applicant's costs in matter numbers: IRC 513 of 1997 and IRC 1788 of 1997 up to and including 25 August 1998 assessed on a party and party basis." "The Applicant pay the Respondent's costs in matter numbers: IRC 513 of 1997 and IRC 1788 of 1997 from 26 August 1998 and onwards, assessed on a...