Shellharbour City Council v Johnson [No 2] [2006] NSWCA 114

Reported Decision : 67 NSWLR 308

New South Wales Court of Appeal

CITATION: Shellharbour City Council v Johnson [No 2] [2006] NSWCA 114

HEARING DATE(S): The matter proceeded by way of written submissions.

JUDGMENT DATE: 5 July 2006

JUDGMENT OF: Beazley JA at [1]; Tobias JA at [2]; Hunt AJA at [3]

DECISION: (1) The defendant is to pay the plaintiff's costs of the appeal up to and including 22 June 2005 on a party and party basis and thereafter on an indemnity basis.; (2) The defendant is to pay the plaintiff's costs of this application.

CATCHWORDS: Plaintiff's judgment for personal injury less than $100,000 — defendant unsuccessful in appeal against judgment — offer of compromise by plaintiff — Legal Profession Act 1987, s 198F, limits party's right to seek indemnity costs order pursuant to rules of court — it does not itself authorise an indemnity costs order — "reasonable" offer defined — general approach by courts to offers of compromise pursuant to the SCR applicable to offers pursuant to UCPR — amount of interest lost on judgment if offer of compromise accepted relevant to whether offer should properly be regarded as a compromise — s 198D(4)(b) prevents order for costs exceeding maximum permitted, but it applies to certificate of assessment of costs filed in court, not to general order made by court that one party pay the other party's costs but does not specify amount.

Civil Liability Act 2002 LEGISLATION CITED: Civil Procedure Act 2005 Legal Profession Act 1987 Legal Profession Act 2004

Andrews v NSW (2004) 1 DCLR (NSW) 230 Connor v Hatgis (No 2), Court of Appeal (BC9501810), 7 December 1995, unreported Forbes Services Memorial Club Ltd v Hodge (Court of Appeal BC9504456), 8 March 1995, unreported Fowdh v Fowdh, Court of Appeal (BC9302200), 4 November 1993, unreported Herbert v Tamworth City Council (No 4) (2004) 60 NSWLR 476 Hillier v Sheather (1995) 36 NSWLR 414 Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 CASES CITED: Manly Council v Byrne (No 2) [2004] NSWCA 227 Morgan v Johnson (1998) 44 NSWLR 578 Newcastle City Council v McShane [No 3] [2005] NSWCA 437 NSW Insurance Ministerial Corporation v Gomes (No 2), Court of Appeal (BC9807723), 3 December 1998 Nicholson v Nicholson (No 2), Court of Appeal (BC9504206), 1 February 1995 Nolan v Clifford (1904) 1 CLR 429 Penrith City Council v Parks [2004] NSWCA 381 Shellharbour City Council v Johnson [2006] NSWCA 67 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 South Eastern Sydney Area Health Service v King [No 2] [2006] NSWCA 73