Pettiford v Whicker [2005] NSWCA 370

New South Wales Court of Appeal

CITATION: Pettiford v Whicker [2005] NSWCA 370

HEARING DATE(S): 24/10/2005

JUDGMENT DATE: 24 October 2005

JUDGMENT OF: Handley JA at 1 & 28; Ipp JA at 2; Bryson JA at 3

DECISION: Refer para 27

CATCHWORDS: COSTS - Offer of Compromise SCR Pt 5A r 22(4) and (5) - whether judgment no less favourable than the offer - decision turned on construction of offer as to which party was to pay the mortgage debt - decision on construction of terms of offer - no question of principle.

Property (Relationships) Act 1984 (NSW) LEGISLATION CITED: Supreme Court Act 1970 Supreme Court Rules

Colleen Nina Pettiford - Appellant PARTIES: Susan Desiree Whicker - Respondent

FILE NUMBER(S): CA 41210/04

Ms L. Judge Appellant COUNSEL: Ns J. Housego Respondent

Sydun & Co Appellant SOLICITORS: Robinson & Mason Pty Ltd Respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 1697/02

LOWER COURT JUDICIAL OFFICER: AsJ McLaughlin

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41210/04

HANDLEY JA IPP JA BRYSON JA

MONDAY 24 OCTOBER 2005 COLLEEN NINA PETTIFORD v SUSAN DESIREE WHICKER Judgment 1 HANDLEY JA: I agree. 2 IPP JA: I agree. 3 BRYSON JA: The claimant Ms Pettiford, the defendant in the Equity Division, seeks leave to appeal against order (1) made by Master McLaughlin on 22 December 2004 relating to costs, in these terms: "I order that the defendant pay the costs of the plaintiff of the proceedings, such costs to be on the party and party basis up to 11am on 19 November 2003 and on the indemnity basis thereafter." 4 The form of the order for costs is explained by the Master having been of the view that he should act under provisions of the Supreme Court Rules then in force which relate to an offer of compromise, Pt 22 Division 1 and particularly Regulation 3, and Pt 52A Regulation 22(4) and (5). Those sub rules are:- (4) where an offer is made by a plaintiff and not accepted by the defendant and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favour to the plaintiff then the terms of the offer, then, unless the court otherwise orders, the plaintiff, shall, subject to rule 33 be entitled to an order against the defendant for the plaintiff's costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to his costs incurred before and on that day, assessed on a party and party basis. (5) For the purpose of sub rule (4), where the offer was made on the 1st or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to the plaintiff's costs in respect of the claim from 11am following the day on which the offer was made, assessed on an indemnity basis, in addition to the plaintiff's costs incurred before that time, assessed on a party and party basis.