Metro North Hospital and Health Service v Stewart

Judgment was given in favour of the respondent in the underlying proceedings; the appellant sought its costs on an indemnity basis from a certain date, on the basis that damages awarded were less than the amount which had been offered to settle the proceedings. The primary judge had declined to award those costs. At issue was whether the offer which had been made complied with the requirements of r 353 of the UCPR, the offer having stated that “fund management and administration fees” were “to be agreed following resolution of primary damages”. Boddice JA, with whom the other justices agreed, concluded that the primary judge had been correct to find that, in leaving a head of damage for future resolution (being fund management and administration fees), the appellant’s offer had not complied with r 353.

Mullins P, Boddice JA and Ryan J

15 November 2024

The primary judge awarded damages against the appellant in favour of the respondent; those damages were less than an amount which had been offered by the appellant to settle the proceedings the year before. [2]. No costs were ordered by the primary judge in favour of the appellant despite that offer, on the basis that the offer had not complied with r 353 of the Uniform Civil Procedure Rule 1999 (“UCPR”). [5].

The offer which had been made had stated that the respondent’s “reasonable fund management and administration fees [were] to be agreed following resolution of primary damages”. [7].

The primary judge reasoned that to be compliant with r 353 UCPR, an offer must settle the entirety of a cause of action or claim for relief. The offer made by the appellant proposed to resolve a relevant head of damage (fund management and administration fees) later, meaning that the offer did not comply with r 353. [8].

Consideration of the primary judge’s reasoning

Boddice JA, with whom P Mullins and Ryan J agreed, in considering the principles of statutory interpretation as applied to the UCPR, concluded that a claim in negligence is particularised under multiple heads of damage, and that an offer to settle complying with r 353 of the UCPR must in such a case be an offer to settle all of the heads of damage of a claim. [9]–[16]. His Honour agreed with the primary judge that the offer made by the appellant, in stating that fund management and administration fees would be agreed later, had failed to comply with r 353. [17]–[19].

Disposition

The appeal was dismissed.

B Wilson of Counsel