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

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.