EVANS v MARMONT [1997] NSWCA 104

EVANS v MARMONT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, MASON P, PRIESTLEY and MEAGHER JJA, and MCLELLAND CJ in EQ

26 August 1997

[1997] NSWCA 104

Gleeson CJ, Mason P, Meagher JA and McLelland CJ in EQ. Following the delivery of judgment in this appeal on | July 1997 the Court has received from counsel for the respective parties written submissions on the question of costs. On 24 February 1995, by a Calderbank letter, the respondent offered the appellant $200,000 (plus costs) in settlement of her claim, conditional upon acceptance before 4.00 pm on 8 March 1995. That was rejected by the appellant who countered with $310,000 inclusive of costs. On 8 March 1995 the respondent, by a further Calderbank letter, offered $240,000 (plus costs) in settlement of the claim, conditional upon acceptance before 12.00 pm (sic) on 10 March 1995. That was also rejected on 9 March 1995 by the appellant, who sought $300,000 plus costs. The proceedings were heard by the Master on 14 and 15 March 1995 and judgment was given by the Master on 16 March 1995, in consequence of which the Master (inter alia) ordered the respondent to pay to the appellant $110,000 by way of adjustment of property interests.

On 20 March 1995 the Master heard argument as to costs, and on the basis of the offer of 24 February 1995 he ordered that the respondent pay the appellant's costs on a party/party basis up to and including 24 February 1995 and that the appellant pay the respondent's costs thereafter.

On appeal by the appellant to this court the Master's substantive order was varied by altering the sum of $110,000 to $175,000.

The appellant submits that the respondent should be ordered to pay the costs both of the appeal and of the proceedings at first instance. The respondent submits that the appellant should be ordered to pay the costs of the appeal and that the Master's costs orders of 20 March 1995 should stand.