CSR LIMITED vy ELLIOTT; GEORGE WARD PTY LIMITED v UBERO PTY LIMITED [NO 2] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KIRBY P, PRIESTLEY JA and HANDLEY JA 8 August 1994, 21 March 1995 [1995] NSWCA 110 COSTS — assignment of appropriate party to pay in multi-party appeal and cross-appeal — application for indemnity costs — offer to accept $100,000 of $103,665 judgment — whether offer of compromise — omission of workers' compensation — held: No indemnity costs ordered. Kirby P. I agree with Priestley JA. Priestley JA. The court published reasons and pronounced judgments and orders in these matters on 23 June 1994. Order 7 suspended the operation of certain of the judgments and orders for fourteen days for the reasons then given. Liberty to apply within fourteen days was reserved. Subsequently, one aspect only of the court's orders, concerning one matter of costs in the first of the two abovenamed appeals, became the subject of an application for clarification. This was a tactful way of describing the application, because although the court, in disposing of the appeals, made orders for costs of the trial before Davidson DCJ, no orders were made for the costs of Mrs Elliott (the plaintiff) as respondent to the appeal. When the matter came before the court for the making of the necessary order, it was common ground between all parties that Mrs Elliott asrespondent should have her costs of the appeal. There was however no agreement on who should pay her costs or whether indemnity costs should be ordered. CSR instituted the appeal, which, as explained in the reasons already published, was, on the substantive grounds of appeal, bound to fail in this court and bound also to fail in the High Court unless the High Court could be persuaded to overturn a line of its own authority which there is no blindingly obvious reason for overturning. Ubero cross-appealed on a ground which was, in the ordinary course of events, unlikely to succeed. When the appeals came before the court for hearing Ubero abandoned its cross-appeal. The only matter of substance which had any real potential life in the appeal was the question raised by CSR whether, between itself and Ubero, it was to be credited with the payment to Mrs Elliott of the workers compensation amount of $17,877. On this question, the court was informed that Ubero no longer disputed that the amount should be taken into account as between it and CSR. It may be that Ubero's cross-appeal was simply a defensive response to CSR's appeal. There is no way this court can determine whether Ubero would have appealed had CSR not appealed. From the point of view of Mrs Elliott, she was brought to this court primarily by CSR in its pursuit of its appeal against liability to her. It was not until the appeal began that senior counsel for CSR acknowledged to the court that it could not succeed in this court in displacing its 2 UNREPORTED JUDGMENTS liability to Mrs Elliott. Until then, it was necessary for her to incur costs in defending an appeal challenging CSR's liability to her. In the circumstances it seems to me appropriate that CSR should pay Mrs Elliott's costs of the appeal. The question whether Mrs Elliott's costs should be on an indemnity basis is a difficult one. Mrs Elliott relies on an offer of compromise made under Pt 22 of the Supreme Court Rules. That offer proposed that the District Court judgment amount of $103,665 be reduced to $100,000 and that judgment should be entered for that sum. To the obvious objection that the result of this court's orders was that the District Court judgment became one for $85,848, it was argued that, as a practical matter, CSR and Ubero would have been better off by $3,665 so far as actual judgment amount was concerned, because it was never in doubt that Mrs Elliott was bound to be debited with the workers compensation amount of $17,877, by some method. The submission thus was that the court should look at what the end result would have been in money terms had the offer of compromise been accepted and then hold that final orders of this court were no less favourable to Mrs Elliott than the terms of the offer, within the meaning of Pt 52A r 22(4). I would be inclined to accept this submission but for one consideration. The terms of the offer of compromise do not refer to the workers compensation amount of $17,877, which, it was common ground at the appeal, would, by one method or another, have to be repaid or credited by Mrs Elliott in the working out of the amount eventually to be received by her pursuant to the orders in her favour. The absence of any mention of this amount in the offer of compromise seems to me to have made it difficult, if not impossible, for the parties to whom it was addressed to accept it in its terms. By doing so they would have to rely upon an implication which the offer may or may not have carried, namely that it was being made on the basis that Mrs Elliott would, one way or other, have the workers compensation amount deducted from her judgment moneys. I think in prudence the respondents would have needed something explicit and inwriting either as part of or ancillary to the offer of compromise dealing with this aspect of the situation, before considering whether to accept the offer. For this reason I do not think the offer should be construed, in relation to Pt 22 of the Supreme Court Rules, in the way contended for by Mrs Elliott. The result is, therefore, that I would add order (8) to the orders already made, ordering CSR to pay Mrs Elliott's costs of the appeal. Finally, reference was fleetingly made in the further argument, to the question of costs on the appeal as between CSR and Ubero. In the circumstances of the case I would leave each of those parties to bear its costs of the appeal against the other. Accordingly I would propose order (9) saying no order as to the costs of CSR against Ubero or Ubero against CSR, of the appeal. Handley JA. I agree with Priestley JA. Orders accordingly. Counsel for the appellant (CSR Limited): D G T Nock Solicitors for the appellant (CSR Limited): Colin Biggers and Paisley Counsel for the appellant (George Ward Pty Ltd): S B Marsh (Solr) Solicitors for the appellant (George Ward Pty Ltd): McCulloch and Buggy WSR LIMITED v ELLIOTT; GEORGE WARD PTY LIMITED v UBERO PTY LIMITED [NO 4 (Handley JA) Counsel for the respondent (Mrs R E Elliott): G R Waugh Solicitors for the respondent (Mrs R E Elliott): McLellands Counsel for the respondent (Ubero Pty Ltd): P M Morris Solicitors for the respondent (Ubero Pty Ltd): Moray and Agnew