(Re Cheong) SRA of NSW v Amaca Pty Ltd and Ors [2006] NSWDDT 29

Dust Diseases Tribunal of New South Wales

CITATION : (Re Cheong) SRA of NSW v Amaca Pty Ltd and Ors [2006] NSWDDT 29

State Rail Authority of New South Wales (Cross-Claimant) PARTIES : Amaca Pty Ltd (First Cross-Defendant) Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd (In Liquidation) (Second Cross-Defendant) Bradford Insulation Industries Pty Ltd (Third Cross-Defendant)

MATTER NUMBER(S) : 192/2003/1

JUDGMENT OF: Duck J

CATCHWORDS: Dust Diseases Tribunal :- Cross-claim - Offer of compromise - Interest and costs

DATES OF HEARING: 08/08/2006

DATE OF JUDGMENT: 08/08/2006

EX TEMPORE JUDGMENT DATE : 08/08/2006

Mr J A Gracie instructed by Edwards Michael Moroney Lawyers appeared for the Cross-Claimant LEGAL REPRESENTATIVES: Mr D J Russell SC instructed by Phillips Fox Lawyers appeared for the First Cross-Defendant

JUDGMENT: RULING DUCK J 1 In this matter I gave judgment on 25 July pursuant to the terms of which the first cross-defendant was ordered to pay to the cross-claimant as its contribution to the plaintiff's damages the sum of $50,000. At the request of the parties I refrained from making orders about interests and costs. The request was made in the expectation that the parties would be able to come to some agreement about those matters.

2 Insofar as the fourth cross-defendant is concerned agreement was reached and orders have been made by consent and no further consideration needs now to be given to that party.

3 Insofar as the first cross-defendant, Amaca Pty Ltd (Amaca), is concerned, the parties have not been able to agree about interest and costs. The difficulties arise from offers and counter offers which have been made one to the other as the matter developed. The first cross-defendant has filed and relied upon the affidavit of Ms C L Hartley, sworn 4 August 2006, which sets out in convenient form the course of dealings between the parties insofar as these matters are concerned. Relevantly the following material appears. On 17 September 2004 the cross-claimant served its cross-claim on Amaca by delivering it to Amaca's solicitors, Phillips Fox. On 29 September 2004 there was a directions hearing before the President O'Meally, short minutes were handed up and orders were made in conformity with them for the further conduct of the matter. There was a further directions hearing on 20 June 2005 and further short minutes were handed up and orders made. The content of those short minutes suggests, as has been submitted by Mr Russell SC, learned counsel for Amaca, that not much had happened between the dates of the directions hearings. On 5 August 2005 Amaca's solicitors wrote to State Rail's solicitors offering to settle the cross-claim. The letter or a copy of it is annexure D to Ms Hartley's affidavit. The substance of the offer appearing in that letter is as follows: We are instructed to make an offer of settlement to resolve the cross-claim against Amaca in the sum of $55,400 inclusive of the cross-claimant's costs. 4 The offer was expressed to be open for acceptance until 2 September 2005. The time for acceptance was extended by agreement, firstly, until 1 October 2005 and later until 20 January 2006. In the meantime there was a further directions hearing on 13 December 2005 when the matter was stood over until 20 February 2006. On that date an issues and listings conference was appointed for 31 March 2006. Evidence and witness statements were ordered to be served by the parties by 23 March 2006 and the matter was listed for further directions on 10 April 2006. On 10 March 2006 SRA served an offer of compromise, the substance of which was as follows: It proposed that the first cross-defendant should pay to the cross-claimant $60,000 plus interest of $8,500 plus costs assessed at $3,500.