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

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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCA 10
Decision Date: 12 February 2015

CaseChat Overview and Summary

The appeal concerned an application for indemnity costs. The appellant, A F Concrete Pumping Pty Ltd, sought to vary an earlier costs order made by the primary judge. The third respondent sought to uphold the existing costs order. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the appellant should be ordered to pay the third respondent’s costs of the appeal and the summons for leave to appeal on an indemnity basis, at least in part. This required the court to consider the circumstances surrounding the conduct of the parties and whether such conduct warranted departing from the ordinary rule that costs follow the event.

The Court of Appeal found that the third respondent had been successful in resisting the appellant’s primary claim. However, the court also noted that the third respondent had engaged in conduct that, in its view, justified a departure from the ordinary costs order for a portion of the proceedings. Specifically, the court considered that the third respondent’s conduct after 6 September 2013 warranted ordering the appellant to pay the third respondent’s costs on an indemnity basis from that date.

Accordingly, the Court of Appeal varied the earlier order, directing that the appellant pay the third respondent’s costs of the appeal and the summons for leave to appeal on the ordinary basis until 6 September 2013, and on an indemnity basis thereafter. The third respondent’s notice of motion filed on 21 October 2014 was otherwise dismissed with no order as to costs.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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