Matchan v. Lyons [2004] NSWCA 36

New South Wales Court of Appeal

CITATION : Matchan v. Lyons [2004] NSWCA 36 HEARING DATE(S) : Matter dealt with in Chambers JUDGMENT DATE : 27 February 2004

JUDGMENT OF : Hodgson JA at 1; Cripps AJA at 1; Palmer J at 1 DECISION : No amendment made to orders made on 22 December 2003.

CATCHWORDS : PROCEDURE - COSTS - Substituted judgment to take effect as at date of original judgment - Offer of compromise by appellant/defendant - Appellant fails on some issues - No indemnity costs - No apportionment of costs. PARTIES : Rhys Evan Matchan - appellant Geoffrey James Lyons - respondent FILE NUMBER(S) : CA 40178/03 COUNSEL : Ms. K. Williams for appellant Mr. C. Branson QC for respondent SOLICITORS : Phillips Fox, Sydney for appellant Harris Lieberman Boyd, Albury for respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC23/02 (Albury) FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40178/03 DC 23/02

HODGSON JA CRIPPS AJA PALMER J

Friday 27 February 2004 MATCHAN V. LYONS Judgment (On Costs) 1 THE COURT: Judgment in this matter was delivered on 22 December 2003, when the Court made the following orders: 1. Appeal allowed. 2. Verdict and judgment in the District Court be set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $431,716.80. 3. The respondent is to pay the appellant's costs of the appeal but is to receive a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled. 2 However, on application made at that time, an order was made to the effect that written submissions could be made concerning the costs order, and that the costs order would be reconsidered on the basis of those submissions. 3 Written submissions have been provided. 4 The appellant has sought an order that the costs order in its favour should be on an indemnity basis after 25 September 2003, that being the date of service of an offer of compromise, which was in the following terms: 1. The appellant offers to compromise this action on terms that: 1.1 The appeal be allowed. 1.2 The judgment of His Honour Judge Goldring in the District Court in favour of the respondent be set aside. 1.3 There be substituted judgment for the respondent in the sum of $435,000 clear of payments made by the appellant in the sum of $72,254. 1.4 The appellant to pay the costs of the respondent in the court below. 1.5 Each party to pay their own costs of the appeal. 1.6 This offer shall remain open to be accepted until 23 October 2003. 1.7 The appellant undertakes to pay the said sum within 28 days of acceptance of this offer and the costs within 28 days of taxation or of agreement as to costs as the case may be.