Delaney & Ors. v. Short [2001] NSWCA 181

New South Wales Court of Appeal

CITATION : Delaney & Ors. v. Short [2001] NSWCA 181 FILE NUMBER(S) : CA 40129/00 HEARING DATE(S) : In Chambers JUDGMENT DATE : 18 June 2001

PARTIES : P.J. Delaney, P.N. Coumbis, J.P. Rouen, P.T. Hayson, J.S. Currie, G. Miles & J.S. Goldstein - appellants Lesley Lorraine Short - respondent JUDGMENT OF : Heydon JA at 1; Hodgson JA at 2; Davies AJA at 14

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CL20465/94 FILE NUMBER(S) : LOWER COURT Adams, J. JUDICIAL OFFICER :

COUNSEL : Mr. D. Grieve QC with Mr. B. Knox for appellants Mr. D. Murr SC with Mr. J. Miller for respondent SOLICITORS : Phillips Fox, Sydney for appellants Rockliffs, Sydney for respondent CATCHWORDS : COSTS - Offer of compromise - Calculation of minimum time for acceptance - Whether rule complied with - Relevance to discretion. D. LEGISLATION CITED : Supreme Court Rules Part 2 r.5, Part 22 r.3, Part 52A r.22 DECISION : See par.13 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40129/00 CL20465/94

HEYDON JA HODGSON JA DAVIES AJA Monday 18th June 2001 DELANEY & ORS. V. SHORT JUDGMENT (On Costs)

1 HEYDON JA: I agree with the judgment of Hodgson JA as set out below. 2 HODGSON JA: It is necessary to deal with some incidental matters arising from the principal judgment in this matter given on 14th May 2001 ([2001] NSWCA 138). 3 It is common ground that the appellants paid $575.000.00 to the respondent on 21st February 2000 on account of their liability in this case, and that accordingly interest on $220,000.00 should cease as at that date. It is agreed that interest to that date is $286,579.45, and that this sum should be substituted, as being interest to 21st February 2000, for $315,101.00 in Order 3 in the principal judgment. I propose also to note that $575,000.00 was paid on 21st February 2000 and that this was a payment of $68,420.55 in excess of the judgment amount, and to order that this sum be repaid together with interest at Supreme Court rates. 4 It is also common ground that the trial judge's order for indemnity costs should be vacated. However, the respondent still seeks party and party costs of the first instance proceedings. 5 The appellants rely on an offer of compromise served on 23rd December 1998, offering to settle the matter for $575,000.00 plus costs as agreed or taxed. They claim that, pursuant to Pt.52A r.22(6) of the Rules, they are entitled to costs on a party and party basis from 24th December 1998. 6 This is resisted by the respondent on the following grounds: 2.2 However, the respondent submits that the notice referred to in paragraph 3.7 of the Appellants' Submissions does not comply with Part 22 rule 3 of the Supreme Court Rules, because: (1) Part 2 rule 5(1) provides: 5(1) In the reckoning of the time fixed by the rules or any judgment or order for the doing by a party of any act: (a) the period from the beginning of 25 December until the end of 9 January next following; .......... shall, unless the Court otherwise orders, be excluded ... (2) Part 22 rule 3 provides that a person serving a notice of compromise may limit the time it is open to be accepted but the time shall be not less than twenty-eight days after it is made. Part 22 rule 5(a) provides, in effect, that if no time is specified by notice, the party on whom the notice is served may accept it before the expiration of twenty-eight days after the offer is made. Both rules contemplate that, whether the time is limited in a notice or not, the party on whom it is served will have the same minimum period within which to accept it.