New South Wales Court of Appeal CITATION: Lormine Pty Ltd & Anor v Xuereb (No 2) [2006] NSWCA 267 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): On the papers pursuant to order of the Court 25 July 2006 JUDGMENT DATE: 28 September 2006 JUDGMENT OF: Mason P at 1; McColl JA at 1; Hunt AJA at 1 DECISION: In lieu of the previous order for the trial costs the defendants are to pay the plaintiff's costs in the District Court on a party and party basis. The appellants' costs of this application are to be paid by the respondent. LEGISLATION CITED: District Court Rules Legal Profession Act 1987 CASES CITED: Lormine Pty Ltd & Anor v Xuereb [2006]NSWCA 200 Lormine Pty Ltd PARTIES: Ronald James Hunter Juliet Dawn Xuereb FILE NUMBER(S): CA 40235 of 2005 COUNSEL: Appellants: S G Campbell SC/C K Hickey Respondent: P R Arden SC/T Boyd SOLICITORS: Appellants: Barraclough Jones & Associates Respondent: Herbert Weller LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5179 of 2003 LOWER COURT JUDICIAL OFFICER: Ashford DCJ - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40235/2005 MASON P McCOLL JA HUNT AJA 28 September 2006 LORMINE PTY LTD & ANOR v XUEREB (No 2) JUDGMENT 1 THE COURT: In the District Court the plaintiff obtained a verdict for $171,548. Since this was substantially greater than a settlement offer made by the plaintiff under the District Court Rules during proceedings at first instance (viz, to accept $75,000 plus costs), the plaintiff recovered costs as between solicitor and client for the whole of the proceedings in the District Court (see the former Part 39A r25 of the District Court Rules and Lormine Pty Ltd & Anor v Xuereb [2006] NSWCA 200 at [10]). 2 On appeal, the defendants had the plaintiff's verdict reduced to $64,720. Accordingly, in the exercise of liberty to apply reserved by this Court when pronouncing final orders in the appeal, the appellants now seek to vary the costs order at trial so that it reverts to costs on the ordinary (or party and party) basis. The appellants point out that, having regard to the amount recovered, the costs will be subject to s198D of the Legal Profession Act 1987. 3 The submissions and affidavit filed by the appellants have elicited no response from the respondent within the time directed by the Registrar. 4 We accept the appellants' submission. This Court's decision shows that it was not unreasonable for the defendants to have rejected the plaintiff's settlement offer. 5 Accordingly, it is ordered that (in lieu of the previous order for the trial costs) the defendants are to pay the plaintiff's costs in the District Court on a party and party basis. The appellants' costs of this application are to be paid by the respondent (whose solicitors were asked to agree to the amended order, but did not do so). 05/10/2006 - Insert date on first page of judgment - Paragraph(s) top of page 1 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.