New South Wales Court of Appeal CITATION: RYDE CITY COUNCIL v TOURTOURAS [NO. 2] [2007] NSWCA 262 HEARING DATE(S): On written submissions JUDGMENT DATE: 27 September 2007 JUDGMENT OF: Santow JA at 1; McColl JA at 1; Basten JA at 1 (1) No alteration in the order for costs made on 23 August 2007. DECISION: (2) No order as to the costs of this further application. CATCHWORDS: COSTS - indemnity costs - offer of settlement - whether genuine element of compromise LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW), r 42.15 CASES CITED: Calderbank v Calderbank [1975] 3 WLR 586 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [No. 2] [2006] NSWCA 120 Ryde City Council - Claimant PARTIES: George Tourtouras - First Opponent Helen Tourtouras - Second Opponent FILE NUMBER(S): CA 40599/06 SOLICITORS: Marsdens Law Group - Claimant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3176/04 LOWER COURT JUDICIAL OFFICER: Williams DCJ LOWER COURT DATE OF DECISION: 30 August 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40599/06 DC 3176/04 SANTOW JA McCOLL JA BASTEN JA 27 September 2007 RYDE CITY COUNCIL v TOURTOURAS [NO. 2] Judgment 1 THE COURT: The principal judgment in this matter was handed down on 23 August 2007. Leave to appeal was granted and the appeal allowed. In lieu of the judgment below, there was to be a judgment in favour of the plaintiffs in the District Court (the Respondents in the appeal) in an amount of $17,111.57, together with interest from 10 July 2006. The Respondents were ordered to pay the Appellant's costs in this Court. 2 The Appellant, Ryde City Council, now seeks an order that its costs be paid on an indemnity basis on and from 1 August 2006. That application is based upon an offer of settlement made by letter dated 31 July 2006 in which the Council offered to pay the plaintiffs "the sum of $17,250 in respect of their claim for damages and interest". The offer was stated to be open until 5pm on 14 August 2006. 3 The offer of settlement was not made pursuant to the Uniform Civil Procedure Rules 2005 (NSW) and, accordingly, r 42.15 does not apply. It was described as a Calderbank offer. The letter indicated that an application would be made for indemnity costs if the offer were not accepted and the plaintiff obtained a judgment which was not more favourable than the offer. 4 Although the offer was expressed to be open until 14 August, the Council claims indemnity costs from the day following the day on which the offer was made, namely 1 August. If the judgment with interest at Supreme Court rates for a period from 10 July 2006 is calculated until 14 August 2006, the amount of the offer was fractionally below the result of the order in this Court. If the critical date is 1 August, the offer exceeded the judgment entitlement by approximately $55. These figures demonstrate that there is no real element of compromise. It is well-established that an offer which does not involve a real and genuine element of compromise will not be taken into account in relation to costs either under the rules or under the general law principles established by Calderbank v Calderbank [1975] 3 WLR 586: see The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [No. 2] [2006] NSWCA 120 at [8], and other cases there referred to. Further, the offer was not repeated in this Court. 5 Accordingly, there should be no variation in the order for costs made on 23 August 2006. Because the Respondents did not file any response to the application, there should be no order as to the costs of this further application. ********** 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.