State of New South Wales v Francis [2003] NSWSC 931

State of New South Wales v Francis [2003] NSWSC 931

The solicitors for Mr Francis kept the Court of Appeal costs separate from the proposed compromise by addressing them in a separate letter referring only to the appeal hearing, while the compromise particulars were sent in a separate response to the request for particulars. The accepted offer and the formal Terms of Settlement referred to the District Court proceeding and did not refer to the Court of Appeal costs order. Accordingly, the settlement was not about those costs and did not absorb the Court of Appeal costs order.

Jurisdiction
Australia
Judgment Date
23 October 2003
Procedural Posture
Proceeding for Declaratory Relief Concerning Whether a Settlement Absorbed a Court of Appeal Costs Order / Judgment
Outcome
Declaration refused; plaintiff ordered to pay the costs of the proceeding.
Legal Topics
['terms of Settlement' 'offer of Compromise' 'costs Order' 'interpretation of Settlement Agreement' 'district Court Personal Injury Proceedings']
['equity' 'civil Procedure' 'costs' 'settlement'] ['terms of Settlement' 'offer of Compromise' 'costs Order' 'interpretation of Settlement Agreement' 'district Court Personal Injury Proceedings']

Case Brief

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Procedural Posture

Proceeding for Declaratory Relief Concerning Whether a Settlement Absorbed a Court of Appeal Costs Order / Judgment

Legal Issues

  1. 1 ['Whether the words "inclusive of costs" in Terms of Settlement of a District Court proceeding included a costs order previously made in the Court of Appeal.' 'Whether the expression "Counsels\' fees" in correspondence showed that Court of Appeal counsel\'s fees were included in the settlement.']

Ratio Decidendi

The solicitors for Mr Francis kept the Court of Appeal costs separate from the proposed compromise by addressing them in a separate letter referring only to the appeal hearing, while the compromise particulars were sent in a separate response to the request for particulars. The accepted offer and the formal Terms of Settlement referred to the District Court proceeding and did not refer to the Court of Appeal costs order. Accordingly, the settlement was not about those costs and did not absorb the Court of Appeal costs order.

Court Disposition

Declaration refused; plaintiff ordered to pay the costs of the proceeding.

Orders

  • ['That the declaration sought be refused.' 'That the State of New South Wales be ordered to pay the costs of the proceeding.']