Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Howard Smith & Patrick Travel Pty Ltd v Comcare (No 2) [2014] NSWCA 252 Hearing dates: On the papers Decision date: 31 July 2014 Before: Beazley P at [1]; Basten JA at [2]; Sackville AJA at [13] Decision: Vary order (2) made on 3 July 2014 so that it now reads: (2) Order the appellant to pay the respondent's costs of the appeal, to be assessed - (a) up to and including 3 October 2013, on the ordinary basis, and (b) thereafter, on the indemnity basis. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - costs - offer of compromise - appellant ordered to pay respondent's costs on the ordinary basis - application to vary order - rules required costs to be assessed on indemnity basis from the date of rejected offer of compromise - whether valid offer of compromise - whether any reason rule should not apply - Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 51.47 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 51.47 Cases Cited: Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 Category: Costs Parties: Howard Smith & Patrick Travel Pty Ltd (Appellant) Comcare (Respondent) Representation: Counsel: Mr G J Parker SC (Appellant) Mr J Sheller/Mr O Jones (Respondent) Solicitors: HWL Ebswoth (Appellant) Australian Government Solicitor (Respondent) File Number(s): 2013/209537 Decision under appeal Jurisdiction: 9115 Citation: Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6 Date of Decision: 2013-06-21 00:00:00 Before: Finnane DCJ File Number(s): DDT 65 of 2011 Judgment 1BEAZLEY P: I agree with Basten JA. 2BASTEN JA: On 3 July 2014 the Court delivered judgment in the appeal: Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215. The appeal was dismissed; the appellant was ordered to pay the respondent's costs of the appeal. 3On 9 July 2014 the respondent filed a notice of motion seeking variation of the costs order so as to provide that the costs payable in its favour be assessed on an indemnity basis from 3 October 2013, that being a date on which an offer of compromise had been made by Comcare. 4The judgment in the Dust Diseases Tribunal had required that the appellant pay Comcare an amount (in round figures) of $251,344. The appellant was also required to pay interest in an amount later agreed between the parties as $80,254. The full liability of the appellant under the judgment was therefore an amount of $331,598. By the offer of compromise, Comcare agreed to accept the sum of $298,438. The offer was said to be open for 28 days and was made in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.47. The offer was not accepted. 5The offer involved a reduction on the liability of the appellant under the judgment of the Tribunal in the order of $33,000, or 10% of the full amount of the judgment. The appeal having been dismissed with no reduction in the amount of the judgment, Comcare submitted that it had obtained a judgment in this Court "no less favourable" to it than the terms of its offer. Accordingly, unless the Court otherwise ordered, Comcare was entitled to its costs assessed on an indemnity basis from the day following the day on which the offer was made: UCPR, r 42.14. 6The appellant resisted such an order on four bases. First, it submitted that order 1 made by the Tribunal provided a "verdict for the plaintiff" in an amount of $251,344. This amount being less than the amount of the offer, it submitted that there was no element of compromise because the offer exceeded the judgment sum. 7This submission was formalistic: the judgment of the Tribunal included both the verdict referred to above and the requirement that the appellant pay interest on amounts specified, for specified periods. Because the Tribunal was aware that Comcare had already received an amount of $118,781, it left the calculation of interest to the parties. As the appellant acknowledged, by 13 August 2013 interest had been agreed and the full amount of $331,598 had already been paid to Comcare. The submission is without substance and must be rejected. 8Secondly, the appellant submitted that there was an email (which was not in evidence, but was quoted in the submissions), dated 20 November 2013 by which Comcare advised that it would not respond to any further offers that involved it "paying money back" to the appellant. Accordingly, the appellant submitted, Comcare's position was "contradictory." 9This submission must also be rejected. The email did not relate to Comcare's offer but was in response to an offer made by the appellant, which was rejected by Comcare. Further, the email was sent more than a fortnight after Comcare's offer had expired. 10Thirdly, the appellant noted that the judgment sum included an amount of $118,781, already paid by the appellant, for which credit was allowed. The appellant complained that the offer of compromise did not address this figure or state whether it was "included in the offer". The offer, however, was to compromise Comcare's claim: it was not concerned with amounts which had or had not been paid. The full amount of the judgment liability had already been met by the appellant: there was no element of ambiguity in the offer in this respect. The submission must be rejected. 11Fourthly, although it appeared to do no more than summarise the meritless submissions referred to above, the appellant asserted that Comcare did not "clarify" that the offer represented "90% of the judgment sum" until its submissions in support of the present motion. The appellant stated that "[t]his clarification is the first Howard Smith has received from Comcare dealing with the manner in which they came to their offer." That this statement is literally correct may be accepted; it makes no point of substance. 12None of the reasons raised by the appellant cast any doubt on the proposition that the offer was a valid offer of compromise for the purposes of r 51.47. Nor did the submissions raise any basis for the Court to make an order otherwise than in accordance with r 42.14. Accordingly, the Court should vary order (2) made on 3 July 2014 so that it now reads: (2) Order the appellant to pay the respondent's costs of the appeal, to be assessed - (a) up to and including 3 October 2013, on the ordinary basis, and (b) thereafter, on the indemnity basis. 13SACKVILLE AJA: I agree with Basten JA. ********** 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. Decision last updated: 31 July 2014