WARKWORTH MINING COMPANY PTY LIMITED v O'CONNOR [1996] NSWCA 546

WARKWORTH MINING COMPANY PTY LIMITED v O'CONNOR

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 2 February 1996

[1996] NSWCA 546

Priestley JA. The respondent to a discontinued appeal applies for his costs of the appeal on an indemnity basis. The appellant resists the application saying that the rules upon which the respondent relies have not been complied with.

The appellant appealed against a Compensation Court judgment delivered on 1 December 1993.

On 20 January 1994 the respondent's solicitors wrote to the appellant's solicitors enclosing a Notice of Compromise, which, leaving out formal parts, read as follows:

The Respondent makes an Offer of Compromise in the proceedings on the following basis: Appeal dismissed. Each party to pay its and their own costs. These terms not to be disclosed.

This Offer of Compromise is made pursuant to Pt 22 of the Supreme Court Rules."'The offer of compromise was not accepted.

PFYNr

By Notice of Discontinuance filed on 5 June 1995 the appellant discontinued the appeal.

The costs rules relevant to the respondent's application for indemnity costs are contained in Pt 52A of the Supreme Court Rules. Part 52A replaced Pt 52, for most purposes including those of the present application, from | July 1994.

The subrule particularly relevant to the respondent's application is Pt 52A r 22(4), which reads as follows:

Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall, subject to rule 33, be entitled to an order against the defendant for the plaintiff's costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to his costs incurred before and on that day, assessed on a party and party basis.