Rexstraw & Ors v Johnson & Ors (No 2) [2004] NSWCA 42

New South Wales Court of Appeal

CITATION : Rexstraw & Ors v Johnson & Ors (No 2) [2004] NSWCA 42 HEARING DATE(S) : On written submissions JUDGMENT DATE : 4 March 2004

JUDGMENT OF : Sheller JA at 1; Tobias JA at 2 DECISION : In proceedings CA 40943/02; a) Appeal allowed; b)The respondent to pay one third of the appellant's costs of the appeal but if otherwise qualified, to have a certificate under the Suitor's Fund Act, 1951; In proceedings CA 40944/02; a) The appeal by the first appellant be dismissed; b) The appeal by the second appellant against the first respondents be dismissed; c) The second appellant to pay the first respondents' costs of the appeal; d) The appeal by the second appellant against the second and third respondents be allowed; e) Each of the second appellant and the second and third respondents to pay their own costs of the appeal; In proceedings CA 40975/02; a) Appeal dismissed; b) The appellants to pay the respondents' costs of the appeal; In proceedings CA 40943/02, 40944/02 and 40975/02; a) Orders 10 to 15 (inclusive) made by Hogan ADCJ on 20 September 2003 be set aside and in lieu thereof, judgment be entered on the cross-claims as between the appellants in respect of their total liability to the plaintiffs in the following proportions; (i) the appellant in CA 40943/02 - 33.5%; (ii) the appellants in CA 40944/02 - 42.5%; (iii) the appellants in CA 40975/02 - 24%.

CATCHWORDS : PROCEDURES, COSTS, contribution between parties, apportionment of costs on appeal, Calderbank letter, settlement offer, expiration of settlement offer, failure to accept settlement where settlement requires agreement of several parties CASES CITED : SMEC Testing Services Pty Limited v Campbelltown City Council [2000] NSW CA 323 Jones v Bradley (No. 2) [2003] NSWCA 258 Bruce Richard Rexstraw PARTIES : Raymond Keith Johnson Trevor Albert Thirkettle Provident Holdings Limited FILE NUMBER(S) : CA 40975/02; 40944/02; 40943/02 For Johnson - Mr M McCulloch/ Mr D F Villa COUNSEL : For O'Sullivan/Provident - Mr F Douglas QC / Ms R Sofroniou For Rexstraw - Mr D Conti SC For Thirkettle - Mr I E Davidson For Johnson - P W Turk & Associates SOLICITORS : For O'Sullivan - The Argyle Partnership For Rexstraw - Phillips Fox For Thirkettle - Emil Ford & Co