Delaney & Ors. v. Short [2001] NSWCA 181

Delaney & Ors. v. Short [2001] NSWCA 181

The offer of compromise did not provide the required minimum acceptance period once the rule excluding 25 December to 9 January was applied indirectly through Pt.22 r.3, so Pt.52A r.22(6) did not operate automatically. However, the non-compliance was accidental, no prejudice was shown, and a Calderbank offer without an explicit time limit followed quickly; therefore it was unreasonable for the respondent not to accept the offer by 15th January 1999 and the Court should exercise its costs discretion by ordering the appellants to pay the respondent's costs up to that date and the respondent to pay the appellants' costs thereafter.

Jurisdiction
Australia
Judgment Date
18 June 2001
Procedural Posture
Costs Arising From Appeal / In Chambers After Principal Judgment Given on 14th May 2001
Outcome
Order 3 made on 14th May 2001 was vacated and substituted; the respondent was ordered to repay the excess payment with interest; the trial judge's costs orders were set aside; and costs of the proceedings were split at 15th January 1999.
Legal Topics
['offer of Compromise' 'calculation of Minimum Time for Acceptance' 'indemnity Costs' 'party and Party Costs' 'calderbank Offer']
['costs' 'civil Procedure'] ['offer of Compromise' 'calculation of Minimum Time for Acceptance' 'indemnity Costs' 'party and Party Costs' 'calderbank Offer']

Case Brief

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Procedural Posture

Costs Arising From Appeal / In Chambers After Principal Judgment Given on 14th May 2001

Legal Issues

  1. 1 ["Whether the appellants' offer of compromise served on 23rd December 1998 complied with Part 22 rule 3 of the Supreme Court Rules when Part 2 rule 5 excluded the period from 25 December to 9 January." 'Whether Part 52A rule 22(6) applied so that the appellants were entitled to party and party costs from 24th December 1998.' "Whether the respondent should receive party and party costs of the first instance proceedings despite the appellants' offer." 'Whether the appellants should receive the costs of the appeal on an indemnity basis.']

Ratio Decidendi

The offer of compromise did not provide the required minimum acceptance period once the rule excluding 25 December to 9 January was applied indirectly through Pt.22 r.3, so Pt.52A r.22(6) did not operate automatically. However, the non-compliance was accidental, no prejudice was shown, and a Calderbank offer without an explicit time limit followed quickly; therefore it was unreasonable for the respondent not to accept the offer by 15th January 1999 and the Court should exercise its costs discretion by ordering the appellants to pay the respondent's costs up to that date and the respondent to pay the appellants' costs thereafter.

Court Disposition

Order 3 made on 14th May 2001 was vacated and substituted; the respondent was ordered to repay the excess payment with interest; the trial judge's costs orders were set aside; and costs of the proceedings were split at 15th January 1999.

Orders

  • ['Order 3 made on 14th May 2001 vacated, and in lieu thereof judgment for the respondent against the appellants for $220,000.00 plus $286,579.45 interest to 21st February 2000.' 'Note that the appellants paid to the respondent $575,000.00 on 21st February 2000 on account of their liability in this case, being...