Ana Carvalho v Kensington Bowling Club

It is agreed that the offer of compromise was served on Wednesday 11 August 2010. The offer of compromise became exhibit 1 in these proceedings. The offer put by Mr Turnbull's client, the defendant, to the plaintiff was to compromise the matter by consenting to orders in the form of a verdict and judgment for the defendant and no order as to costs. Mr Turnbull argued that costs under the Rule should be awarded on an indemnity basis from 13 August 2010.

Mr Thompson of counsel, for the plaintiff, argues that the offer was not a genuine offer to compromise, but really a demand to submit.

The authorities which I have consulted include Melchior v Sydney Adventist Hospital Limited No 2 [2009] NSWCS 65 and Leichhardt Municipal Council v Green [2004] NSWCA 341. Two things appear from those authorities which I regard as important at this stage. The first is that the onus is on Mr Thompson and the second is that he needs to demonstrate exceptional circumstances to resist the prima facie operation of the Rule.

73. I do regard the offer as genuine. The proceedings had their difficulties so far as proof of liability was concerned. The plaintiff sued not the persons who provided her with the food which she claimed brought about food poisoning, but the club who retained those persons. Statutory causes of action were not, in my opinion, available; nor was any cause of action in contract available. The plaintiff had to rely upon a cause of action in negligence which a result of the High Court's decision in Leighton and the Court of Appeal's decision in Unilever, meant that she faced some difficulties.

It was a genuine offer, in my opinion, to which she no doubt gave serious consideration. I propose to grant the order for costs in the terms which Mr Turnbull has sought.

Accordingly, having entered a verdict and judgment for the defendant in these proceedings, I order the plaintiff to pay the defendant's costs on an ordinary basis up to and including 12 August 2010 and on an indemnity basis from 13 August 2010. I make that order pursuant to UCPR 42.15A.

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