AAV Australia Pty Limited v Regency Media Pty Limited (No. 2) [2008] NSWDC 115

New South Wales District Court

CITATION: AAV Australia Pty Limited v Regency Media Pty Limited (No. 2) [2008] NSWDC 115

HEARING DATE(S): 4/7/08

JUDGMENT DATE: 4 July 2008

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See paragraph 8 of Judgment

CATCHWORDS: Offer of Compromise - Prima facie entitlement under the Rules - Pre-Judgment interest consideration - No exceptional circumstances

LEGISLATION CITED: Uniform Civil Procedure Rules

Caine v Lumley General Insurance Limited (No. 2) (2008) NSW CA at 109 at (32) CASES CITED: Hillier v Sheather (1995) 36 NSW LR 414 at 422-3 Falkner v Bourke (1990) 19 NSW LR 574 at 576

PARTIES: AAV Australia Pty Limited (Plaintiff) Regency Media Pty Limited (Defendant)

FILE NUMBER(S): 2577/07

COUNSEL: C N Bova for the Plaintiff P Silver for the Defendant

JUDGMENT

1 By offer of compromise dated 5 September 2007 the plaintiff offered to settle proceedings for $550,592.44 plus costs on the ordinary basis.

2 On 26 June 2008, in accordance with the Court's reasons for Judgment published on 19 June 2008, Judgment was entered in favour of the plaintiff in the amount of $677,328.97 comprising damages of $567,744.40 and interest of $109,584.57.

3 Given the outcome, the plaintiff seeks an order pursuant to Rule 42.14 (2) of the Uniform Civil Procedure Rules requiring the Defendant to pay its costs on the ordinary basis up to 5 September 2007 and from 6 September 2007 to date on an indemnity basis.

4 The Court has received the parties written submissions on the matter and it is therefore not necessary to set them out. In a nutshell, the defendant says if a comparison is made of the amount in the offer of compromise with the amount of damages awarded (not taking into account any interest), the plaintiff is only marginally better off. Therefore the plaintiff's offer was not a real and genuine element of compromise and so in the exercise of the Court's discretion the orders sought by the plaintiff should not be made.