GIO v Nathan FOSSE (by his next friend Earl Patrick FOSSE)

HANDLEY JA: I will ask Stein JA to give the first judgment.

STEIN JA: This is an application for leave to appeal and, if granted, it is agreed that the appeal may proceed.

The claimant, the defendant in the proceedings, made an offer of compromise of $2,325,000 plus costs. This offer was accepted by the opponent, the plaintiff in the proceedings, on 3 September 1998. There was then a binding agreement between the parties, subject to the approval of the Court since the plaintiff was a disabled person.

"Plus costs" has a settled meaning in practice. The phrase is one which is commonly used and it means costs to the date of settlement on a party and party basis.

After the offer was accepted by the plaintiff, it was approved by the Court. This was a judgment of the Court which covered both damages and costs.

The question raised before us is whether the acceptance of the offer and subsequent approval by the Court and judgment, precluded the application of Part 52A Rule 22 of the Supreme Court Rules concerning indemnity costs. In my opinion, the acceptance of the offer and the subsequent approval by the Court and judgment precluded the application of Part 52A Rule 22. In my view, the master was wrong to conclude otherwise.

I would propose that the following orders be made: 1. Leave to appeal be granted and the appeal be upheld with costs. 2. That the order made by the Master that the claimant pay the opponent's costs on an indemnity basis as from 30 July 1997 and the costs of the motion dated 20 January 1999 on a party and party basis be set aside. 3. Respondent to have a certificate under the Suitors’ Fund Act 1951 if qualified.

I would ask that Mr Tonner on behalf of the claimant give an undertaking to file the notice of appeal in the form which appears in the white book.

TONNER: Yes, that undertaking is given, your Honour.

HANDLEY JA: I agree.

BEAZLEY JA: I agree.

HANDLEY JA: The orders of the Court, made on the basis of the undertaking given by Mr Tonner on behalf of the claimant, now appellant, will be as announced by Stein JA. oOo