Pittorino v Yates [2009] NSWCA 87

Pittorino v Yates [2009] NSWCA 87

The majority held that the primary judge made no error in finding that the claimant's offer of compromise was not left open for such time as was reasonable in the circumstances. The opponent had been served with significant medical reports shortly before the offer, had reasonably moved to obtain a specialist orthopaedic report, and the claimant knew before the extended expiry date that the report was being obtained and would not be available in time. Because the offer did not satisfy r 20.26(7)(b), the costs consequences under r 42.15 did not arise, and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
27 April 2009
Procedural Posture
Civil Application for Leave to Appeal and Appeal Concerning Costs Following District Court Motor Vehicle Accident Proceedings / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed; claimant ordered to pay the opponent's costs of the summons for leave to appeal and the appeal.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'reasonable Time for Acceptance' 'uniform Civil Procedure Rules' 'appellate Review of Costs Discretion']
['civil Procedure' 'costs' 'personal Injury'] ['offer of Compromise' 'indemnity Costs' 'reasonable Time for Acceptance' 'uniform Civil Procedure Rules' 'appellate Review of Costs Discretion']

Case Brief

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Procedural Posture

Civil Application for Leave to Appeal and Appeal Concerning Costs Following District Court Motor Vehicle Accident Proceedings / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether an offer of compromise made less than two months before the date set down for commencement of the trial was left open for such time as was reasonable in the circumstances under r 20.26(7)(b) of the Uniform Civil Procedure Rules 2005.' 'Whether the reasonableness of the time for which the offer was left open was to be assessed only as at the date the offer was made or by reference to circumstances occurring before and after that date.' "Whether the primary judge erred in refusing the claimant's application for costs under r 42.15 of the Uniform Civil Procedure Rules 2005."]

Ratio Decidendi

The majority held that the primary judge made no error in finding that the claimant's offer of compromise was not left open for such time as was reasonable in the circumstances. The opponent had been served with significant medical reports shortly before the offer, had reasonably moved to obtain a specialist orthopaedic report, and the claimant knew before the extended expiry date that the report was being obtained and would not be available in time. Because the offer did not satisfy r 20.26(7)(b), the costs consequences under r 42.15 did not arise, and the appeal was dismissed.

Court Disposition

Leave to appeal granted; appeal dismissed; claimant ordered to pay the opponent's costs of the summons for leave to appeal and the appeal.

Orders

  • ['Leave to appeal granted.' "The claimant's notice of appeal to be filed within 7 days of the date of these orders." 'Appeal dismissed.' "The claimant to pay the opponent's costs of the summons for leave to appeal and the appeal."]