Port Stephens Shire Council & Anor v Tellamist Pty Ltd (No 2) [2004] NSWCA 415

Port Stephens Shire Council & Anor v Tellamist Pty Ltd (No 2) [2004] NSWCA 415

The offer of compromise was effective and its rejection by the Respondent attracted adverse costs orders per the Rules. The Respondent was entitled only to nominal damages, not compensatory or exemplary damages. The restitutionary interest should be paid on the sum held pending judgment. Costs orders were made in accordance with Rules and principles governing offers of compromise, without sufficient grounds shown to depart from the prescriptive consequences of the Rules.

Parties
First Appellant: Port Stephens Shire Council; Second Appellant: Daracon Engineering Pty Ltd; Respondent: Tellamist Pty Ltd
Jurisdiction
Australia
Judgment Date
16 November 2004
Procedural Posture
Appeal and Cross Appeal / Judgment After Appeal and Cross Appeal
Outcome
Appeal allowed; cross-appeal dismissed.
Legal Topics
Costs, Offer of Compromise, Restitutionary Interest, Nominal Damages
Civil Procedure Costs Offer of Compromise Restitutionary Interest Nominal Damages

Case Brief

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Parties

Port Stephens Shire Council

First Appellant

Daracon Engineering Pty Ltd

Second Appellant

Tellamist Pty Ltd

Respondent

Procedural Posture

Appeal and Cross Appeal / Judgment After Appeal and Cross Appeal

Legal Issues

  1. 1 Whether nominal damages should carry interest
  2. 2 Whether offer of compromise was effective under the Rules and/or as a Calderbank offer
  3. 3 Entitlement to costs before and after offer of compromise

Ratio Decidendi

The offer of compromise was effective and its rejection by the Respondent attracted adverse costs orders per the Rules. The Respondent was entitled only to nominal damages, not compensatory or exemplary damages. The restitutionary interest should be paid on the sum held pending judgment. Costs orders were made in accordance with Rules and principles governing offers of compromise, without sufficient grounds shown to depart from the prescriptive consequences of the Rules.

Court Disposition

Appeal allowed; cross-appeal dismissed.

Orders

  • Set aside the judgment and orders of Bergin J; in lieu, judgment for plaintiff against defendants in the sum of $1,000.
  • Defendants pay plaintiff’s costs of proceedings up to and including 6 December 2002 and plaintiff pay defendants’ costs from 6 December 2002 on a party and party basis, subject to confirmation of Bergin J’s order as to costs thrown away by abandonment of defences and cross-claim.