U'BRIEN v KASSOUF [1999] NSWCA 276

New South Wales Court of Appeal CITATION : U'BRIEN v KASSOUF [1999] NSWCA 276 FILE NUMBER(S) : CA 40687/98 HEARING DATE(S) : 29 July 1999 (on the papers) JUDGMENT DATE : 29 July 1999

PARTIES : SUSAN U'BRIEN v ROBERT KASSOUF JUDGMENT OF : Mason P at 1; Sheller JA at 12; Fitzgerald JA at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 73/95 LOWER COURT JUDICIAL OFFICER : Delaney DCJ

COUNSEL : J D McDonald (Appellant) S P Groves (Solicitor) (Respondent) SOLICITORS : W R Harvey (Appellant) Lamrocks (Respondent) CATCHWORDS : Costs - settlement offer - no question of principle DECISION : Appeal upheld

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40687/98 MASON P SHELLER JA FITZGERALD JA

Thursday 29 July 1999

SUSAN U'BRIEN v ROBERT KASSOUF

JUDGMENT 1 MASON P: This is an application for leave to appeal in which the parties agreed that the issue of leave may be dealt with on the papers. Leave was granted. The parties have subsequently agreed that the appeal may be addressed in similar manner. Indeed the opponent has submitted to the orders of the Court, except as to costs. 2 The opponent was a front seat passenger in a motor vehicle driven by his father which was involved in an accident with a car driven by the claimant. The opponent sued in the District Court, filing his Statement of Claim in December 1995. On 16 December 1996 the claimant made a settlement offer expressed to be in accordance with Pt 19A r9 of the District Court Rules, offering settlement in the sum of $31,500 plus costs and disbursements. The offer was not accepted within its 28 day currency. 3 Until 18 October 1996 it was Pt 19A r9 which spelt out the consequences of non-acceptance of an offer. On that date, r9 was repealed and effectively replaced by Pt 39A r25. So far as presently relevant, r25 stood in the following form when the proceedings involved in this appeal were heard: (6) Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall … be entitled to an order against the defendant for the plaintiff's costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim thereafter assessed on a party and party basis.