FOWDH v FOWDH and ANOR [1993] NSWCA 100

FOWDH v FOWDH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ, MAHONEY AP and MEAGHER JA 27 August 1993, 4 November 1993

[1993] NSWCA 100

COSTS — indemnity costs — offer of compromise — plaintiff offers to accept $275,000 plus costs — defendants ignore offer and fail to response to it within twenty eight days specified — defendants subsequently offer to settle for $165,000 plus costs — judgment ultimately returned by Master Malpass in favour of plaintiff for $288,500 — Master declines to make order for indemnity costs — orders "otherwise" pursuant to Pt52 R17(4) SCR — appeal to single judge — Ireland J refers proceedings to Court of Appeal

PRACTICE and PROCEDURE — Court of Appeal — reference of proceedings to — appeal to Supreme Court judge from Master — whether appropriate for judge to refer matter to Court of Appeal under Pt12 R2 SCR — no separate question formulated — Ireland J "refers" or "removes" entire proceedings to the Court of Appeal

WORDS and PHRASES — "offer of compromise".

Held: (Disposing of appeal):

(1) (By the Court): The appeal being on a discretionary matter relating to costs, it was for the appellant to show a relevant error of law or of fact finding or the consideration of irrelevant matters.

Wentworth v Rogers and Anor (No 3) (1986) 6 NSWLR 642 (CA) applied;

(2) (By Mahoney AP and Meagher JA; Kirby ACJ dissenting): No or no sufficient error of law, of fact finding, or of the consideration of irrelevant matter was shown to warrant disturbance of the Master's exercise of discretion having regard to the change of the plaintiff's case between the offer and trial. Maitland Hospital v Fisher (1991) 27 NSWLR 721 (CA) referred to - Discussion of the policy governing indemnity costs and of the provision otherwise to order under Pt52 R17(4) SCR.

Held: (By the Court): The reference was irregular but (Meagher JA contra) the appeal should, in the circumstances, be dealt with on its merits.