LAKE MACQUARIE CITY COUNCIL v HOLT [NO 2] [2004] NSWCA 370

New South Wales Court of Appeal

CITATION : LAKE MACQUARIE CITY COUNCIL v HOLT [NO 2] [2004] NSWCA 370 HEARING DATE(S) : 17 August 2004 JUDGMENT DATE : 13 October 2004

JUDGMENT OF : Sheller JA at 1; Ipp JA at 5; Tobias JA at 6 DECISION : Plaintiff to pay the costs of the defendant of the trial and of the appellant of the appeal from 27 September 2002 on an indemnity basis.

CATCHWORDS : COSTS - offer of compromise - s148B(1)(c) District Court Act 1973 LEGISLATION CITED : District Court Act 1973 CASES CITED : N/A PARTIES : Lake Macquarie City Council - Appellant Jason Mark Holt - Respondent FILE NUMBER(S) : CA 41220/03 COUNSEL : P R Cummings - Appellant I S Judd - Respondent SOLICITORS : Hunt & Hunt - Appellant Oliver Campbell Lawyers - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 154/02 FILE NUMBER(S) : LOWER COURT O'Connor DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41220/03 DC 154/02

SHELLER JA IPP JA TOBIAS JA

Wednesday, 13 October 2004 LAKE MACQUARIE CITY COUNCIL v HOLT [NO 2] Judgment 1 SHELLER JA: When the Court handed down judgment in this appeal on 3 September 2004, the question of costs was reserved to enable the parties to make submissions in light of the Court's decision. 2 By letter dated 30 August 2002, the appellant, Lake Macquarie City Council, served on the respondent, Jason Holt, an offer of compromise pursuant to Part 19A of the District Court Rules. In summary, the proposal was that there be a verdict for the Council with each party to pay its own costs. That offer was rejected. By the decision of this Court, there is now a verdict and judgment for the Council with costs. The Council submitted that the offer represented a clear compromise in that the Council was fully prepared to bear its own costs in exchange for a verdict in its favour. The offer was not successful. 3 The Council having been wholly successful with respect to its appeal with a verdict entered in its favour, together with an order for costs, the respondent has done considerably worse than he would have done had he accepted the offer of compromise. It is submitted that the real cause and occasion of the ongoing litigation has been entirely the rejection of the Council's offer of compromise. In those circumstances, it is submitted there is no reason why the Court ought not exercise its discretion to make an order that the respondent pay the Council's costs from the time of the expiry of the Council's offer of compromise, that is to say as from 27 September 2002 on an indemnity basis; see s148B(1)(c) of the District Court Act 1973. 4 The respondent has indicated that he does not wish to make any submissions. Accordingly, the order of the Court will be that the plaintiff will pay the costs of the defendant of the trial and of the appellant of the appeal from 27 September 2002 on an indemnity basis. 5 IPP JA: I agree with Sheller JA. 6 TOBIAS JA: I agree with Sheller JA. **********