A F Concrete Pumping Pty Ltd v Ryan (No 2)

[2015] NSWCA 10

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	A F Concrete Pumping Pty Ltd v Ryan (No 2) [2015] NSWCA 10
Hearing dates:	On the papers
Decision date:	12 February 2015
Before:	Meagher JA; Leeming JA; Sackville AJA
Decision:	1.Vary order 8 made on 10 October 2014 by ordering the appellant to pay the third respondent’s costs of the appeal and of the summons seeking leave to appeal on the ordinary basis until 6 September 2013 and on an indemnity basis thereafter. 2.Otherwise dismiss the third respondent’s notice of motion filed on 21 October 2014 with no order as to costs.
Catchwords:	COSTS – Indemnity Costs
Legislation Cited:	Legal Profession Act 2004 (NSW), Pt 3.2, Div 4 Uniform Civil Procedure Rules 2005 (NSW), r 36.16(1), r 42.2
Category:	Costs
Parties:	A F Concrete Pumping Pty Ltd (Appellant) Jeffrey Lawrence Ryan (First Respondent) Employer’s Mutual New South Wales Ltd (Second Respondent) GIO General Ltd (Third Respondent)
Representation:	Counsel: N Polin SC (Third Respondent) Solicitors: Walker Hedges & Co (Appellant) Gadens Lawyers (Third Respondent)
File Number(s):	CA2013/108773
Decision under appeal	Court or tribunal: Supreme Court of NSW Citation: Jeffrey Ryan & Anor v A F Concrete Pumping Pty Ltd & Anor [2013] NSWSC 113 Ryan v A F Concrete Pumping Pty Ltd (No 2) [2013] NSWSC 219 Date of Decision: 26 February 2013 Before: Adamson J File Number(s): 2010/00408063

Judgment

1. THE COURT: The Court delivered judgment in this appeal on 10 October 2014. The orders made included (by order 8) that the appellant pay the costs of the third respondent (GIO) of the appeal and of the summons seeking leave to appeal. That summons was necessary because the appeal, insofar as it involved GIO, only challenged costs orders made in its favour. Those costs were to be assessed on the ordinary basis: Uniform Civil Procedure Rules (UCPR) 2005 (NSW), r 42.2.

2. GIO has filed a notice of motion seeking an order under UCPR r 36.16(1) varying order 8 to provide that those costs be assessed on an indemnity basis. Alternatively, it seeks to vary that order to provide that those costs be assessed on the ordinary basis until 6 September 2013 and on an indemnity basis thereafter.

3. By its written submissions GIO seeks to support the first order on the basis that the appellant’s costs appeal was not fairly arguable and without merit. That submission is rejected. As the analysis in Meagher JA’s reasons (esp at [82] – [94]) shows, the arguments made in support of the costs appeal were not so obviously hopeless as to justify a special costs order.

4. The alternative order sought by GIO is not opposed in the light of its settlement offer made to the appellant by letter dated 6 September 2013. Accordingly it is not necessary to consider that application, except in one respect.

5. The appellant says that GIO should not be entitled to recover the costs for its appearances at directions hearings on 5 and 24 February 2014 and 10 and 24 March 2014. In its written submissions the appellant asserts that GIO acted unreasonably in not agreeing to certain interlocutory applications of the appellant being heard on the hearing of the appeal, rather than before that hearing. In those circumstances it says that those costs were unreasonably incurred. Those submissions are not supported by evidence and have not been responded to by GIO.

6. An order for payment of costs on the indemnity basis ordinarily covers all costs incurred by the person in whose favour the order is made “other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount”: UCPR r 42.5(b).

7. Whether costs fall within that exception is, if the parties cannot reach agreement about it, a matter for assessment under Pt 3.2, Div 4 of the Legal Profession Act 2004 (NSW). It is not a matter for this Court.

8. GIO has failed to obtain the primary order sought by its motion and succeeded in relation to the alternative order, which was not contested except in a respect which has been rejected. In the circumstances there should be no order as to the costs of that motion.

9. For these reasons, the orders made in respect of GIO’s notice of motion filed on 21 October 2014 are:

1.   Vary order 8 made on 10 October 2014 by ordering the appellant to pay the third respondent’s costs of the appeal and of the summons seeking leave to appeal on the ordinary basis until 6 September 2013 and on an indemnity basis thereafter.

2.   Otherwise dismiss the third respondent’s notice of motion filed on 21 October 2014 with no order as to costs.

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Decision last updated: 12 February 2015