MB v Protective Commissioner [2000] NSWSC 882

New South Wales Supreme Court

CITATION : MB v Protective Commissioner [2000] NSWSC 882 CURRENT JURISDICTION: Equity Division - Protective List FILE NUMBER(S) : SC 59/87; 72/94 HEARING DATE(S) : 23/08/00 JUDGMENT DATE : 4 September 2000

PARTIES : MB - Applicant Protective Commissioner - Respondent JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. A. Martin SC for applicant Mr. D. Officer QC with Mr. J. Sexton SC for respondent SOLICITORS : Mooney & Kennedy, Sydney for applicant Connery & Partners for respondent CATCHWORDS : COSTS - EVIDENCE - Without prejudice offer of settlement - No assertion of intention to rely on quesiton of costs - Admissible LEGISLATION CITED : Evidence Act 1995 s.131(2)(h) CASES CITED : AMEV Finance Ltd. v. Artes Studios Thoroughbreds Pty. Ltd (1988) 13 NSWLR 486 DECISION : See par.19 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

CORAM: HODGSON, CJ in Eq.

Monday 4th September 2000

NO. 59 OF 1987 MB V. THE PROTECTIVE COMMISSIONER

JUDGMENT (On Costs)

1 I gave a judgment in this matter on 25th July 2000. I have now heard submissions as to costs. The Protective Commissioner seeks an order that the costs of both parties be paid out of P's estate; and M seeks an order that the Protective Commissioner pay all the costs of the proceedings.

FURTHER EVIDENCE 2 Evidence was tendered on behalf of M of a settlement offer made by M, and of ensuing events. This was objected to by Mr. Officer QC, for the Protective Commissioner, on the ground that the offer was without prejudice, and no intention to tender the offer on the issue of costs had been stated in the offer. Prior to the passing of the Evidence Act 1995, I had expressed the view that, in those circumstances, without prejudice communications were not admissible: see AMEV Finance Limited v. Artes Studios Thoroughbreds Pty. Ltd. (1988) 13 NSWLR 486. However, in my opinion, s.131(2)(h) of the Evidence Act plainly makes a without prejudice communication of this kind admissible on the question of costs, even though the communication did not disclose an intention to tender the material on the question of costs. 3 The without prejudice offer was contained in a letter dated 18th August 1999 from M's solicitors to the Protective Commissioner's solicitors, which set out matters M intended to rely on in support of her application for the removal of the Protective Commissioner, and then continued as follows: In view of the possibility of further delay and erosion of the fund, our client makes the following offer to settle the matter.