OXLADE v GOSBRIDGE PTY LTD & ORS (NO 2) [1999] NSWCA 165

New South Wales Court of Appeal CITATION : OXLADE v GOSBRIDGE PTY LTD & ORS (NO 2) [1999] NSWCA 165 FILE NUMBER(S) : CA 40068/97 HEARING DATE(S) : 26 March 1999 JUDGMENT DATE : 3 June 1999

PARTIES : HEATHER OXLADE v GOSBRIDGE PTY LTD & ORS (No 2) JUDGMENT OF : Mason P at 1; Fitzgerald JA at 10; Sheppard AJA at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 10092/94 LOWER COURT JUDICIAL OFFICER : Delaney ADCJ

COUNSEL : D A Wheelahan QC/ M A Elkhaim (Appellant) H J Marshall, D Wilson (Respondent) SOLICITORS : McCourts (Appellant) Thurlow Fisher (Respondent) CATCHWORDS : COSTS - Offer of compromise - District Court Rules Part 19A - Discretion to "otherwise order" DECISION : Costs order amended

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40068/97 DC 10092/94

MASON P FITZGERALD JA SHEPPARD AJA

Thursday 3 June 1999 HEATHER OXLADE v GOSBRIDGE PTY LTD & ORS (No 2)

JUDGMENT 1 MASON P: This appeal was allowed for reasons given on 18 December 1998. The respondents were ordered to pay the appellant's costs of the appeal. 2 The appellant was the defendant in the District Court. She had commenced third party proceedings against the respondents seeking contribution or indemnity from them with respect to her potential liability to the plaintiff. She failed in the District Court. On appeal, this Court set aside the orders made in the proceedings on the Third Party Notice. In lieu thereof, it was ordered that there should be a verdict for the defendant (ie the appellant) against the first, second and third third parties (ie the respondents) in the sum of $26,666 with costs. The appellant seeks a variation of that costs order referable to the proceedings below to the effect that her costs be paid on an indemnity basis from 21 November 1995. That was the date on which the appellant made an offer of compromise in accordance with Pt 19A of the District Court Rules which the respondents did not accept, and which the appellant bettered in the upshot of her successful appeal. 3 The appellant is to be regarded as a plaintiff and the respondents are to be regarded as defendants for the purpose of applying the particular cost rule, found at the relevant time in Pt 19A r9(5). It provided: Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less 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 his costs in respect of the claim from the date on which the offer was made, taxed or assessed on an indemnity basis, in addition to his costs in respect of the claim incurred before that date, taxed or assessed on a party and party basis.