Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98

New South Wales Court of Appeal

CITATION: Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98

HEARING DATE(S): 24 March 2009

JUDGMENT DATE: 5 May 2009

JUDGMENT OF: Beazley JA at 1; McColl JA at 2; Mathews AJA at 3

DECISION: (a) Grant leave to appeal. (b) Appellant to file the Notice of Appeal within 7 days. (c) Appeal allowed (d) Costs order made by Patten AJ on 7 May 2008 set aside and in lieu thereof order the applicant to pay 25% of the respondent's costs of the trial on a party and party basis. (e) Reserve the question of the costs of the appeal. (f) Applicant to file and serve written submissions as to the costs of the appeal on or before 11 May 2009. (g) Respondent to file and serve written submissions as to the costs of the appeal on or before 18 May 2009. (h) Applicant to file and serve any written submissions in reply on or before 25 May 2009. (i) Written submissions referred to in paras (f) – (h) to be delivered to the Associate to Beazley JA at the time of, and in addition to, their filing.

CATCHWORDS: COSTS – claim for work injury damages – court proceedings – costs governed by Workplace Injury Management and Workers Compensation Act 1998, s 346 and Workers Compensation Regulation 2003, rr 89-91, 94 – whether power to order costs to be paid on an indemnity basis – whether cl 110 or 113 of the Regulation confers a power to award costs on a basis other than party and party - COSTS – court proceedings to recover work injury damages – worker sues employer and principal contractor – mediation – offer of compromise – whether sufficient compliance with cl 89 and cl 94 of the Workers Compensation Regulation 2003 – whether offer to settle economic loss component of respondent's claim constituted final offer to settle the claim against all defendants under cl 89 – whether sufficient for purposes of cl 94(a) if offer covers only economic loss component of claim – meaning of "the claim" in cl 94(a) – whether primary judge erred in ordering that respondent's costs be paid on a party and party basis - WORDS AND PHRASES – "the claim"