AVS Australian Venue Security Services Pty Ltd v Criminale [No. 2]

In *AVS Australian Venue Security Services Pty Ltd v Criminale [No. 2]*, the Court of Appeal of New South Wales considered an application to vary an earlier costs order. The dispute concerned the appropriate basis for awarding costs in favour of the respondent, Ricky John Criminale, following earlier proceedings.

The primary legal issue before the Court was whether an offer of compromise, which had lapsed due to the termination of earlier proceedings, could still be considered a relevant factor in the exercise of the court's discretion when awarding costs in subsequent, but related, proceedings. Specifically, the court had to determine if the failure to accept the lapsed offer was reasonable, and if so, how that impacted the costs order.

The Court of Appeal held that an offer of compromise, even if it lapsed with the termination of earlier proceedings, could still be a relevant consideration for the exercise of discretion in awarding costs in subsequent proceedings, provided there was a continuity of subject matter. The court reasoned that the reasonableness of a party's failure to accept such an offer was a significant factor in determining whether costs should be awarded on a standard or indemnity basis. In this instance, the court found that the offer of compromise was a relevant consideration and that the failure to accept it was not reasonable.

Consequently, the Court of Appeal varied the order made on 15 December 2006 to include the words "on an indemnity basis". The operative part of the order now directs AVS Australian Venue Security Services Pty Ltd to pay the costs of Ricky John Criminale of and incidental to the proceedings in the Court of Appeal on an indemnity basis.