Manly Council v Byrne and Anor (No. 2) [2004] NSWCA 227

Manly Council v Byrne and Anor (No. 2) [2004] NSWCA 227

The First Respondent's offer was a real offer of compromise because, although it sought the same principal sum as the District Court judgment, accepting it would have required her to forego post-judgment interest of at least $8,401 and potentially more during the offer period. In light of her limited means and strong prospective position on appeal, the compromise was not token or nominal. As the Council's appeal was dismissed and no submission justified otherwise ordering, Part 52A rule 22(4) required indemnity costs for the First Respondent from the date the offer was received, 10 July 2003.

Jurisdiction
Australia
Judgment Date
27 July 2004
Procedural Posture
Costs Determination in Court of Appeal Proceedings Following an Unsuccessful Appeal in Personal Injury Negligence Proceedings / Written Submissions in Chambers After Appeal Dismissed
Outcome
Indemnity costs ordered in favour of the First Respondent; Second Respondent awarded appeal costs on the usual basis.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'court of Appeal Costs' 'contributory Negligence' 'negligence Damages']
['civil Procedure' 'costs' 'torts'] ['offer of Compromise' 'indemnity Costs' 'court of Appeal Costs' 'contributory Negligence' 'negligence Damages']

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Procedural Posture

Costs Determination in Court of Appeal Proceedings Following an Unsuccessful Appeal in Personal Injury Negligence Proceedings / Written Submissions in Chambers After Appeal Dismissed

Legal Issues

  1. 1 ["Whether the First Respondent's offer to accept the same dollar amount as the District Court judgment was an offer of compromise within the Supreme Court Rules." 'Whether the offer involved a real compromise because acceptance would have required the First Respondent to forego post-judgment interest.' 'Whether Part 52A rule 22(4) of the Supreme Court Rules required indemnity costs from the date the offer was made.' 'Whether there was any basis to otherwise order against the default costs consequence.']

Ratio Decidendi

The First Respondent's offer was a real offer of compromise because, although it sought the same principal sum as the District Court judgment, accepting it would have required her to forego post-judgment interest of at least $8,401 and potentially more during the offer period. In light of her limited means and strong prospective position on appeal, the compromise was not token or nominal. As the Council's appeal was dismissed and no submission justified otherwise ordering, Part 52A rule 22(4) required indemnity costs for the First Respondent from the date the offer was received, 10 July 2003.

Court Disposition

Indemnity costs ordered in favour of the First Respondent; Second Respondent awarded appeal costs on the usual basis.

Orders

  • ['Appellant to pay costs of the First Respondent of the appeal, with those costs from 10 July 2003 assessed on an indemnity basis;' 'Appellant to pay costs of the Second Respondent of the appeal.']