Bennette v Cohen (No 2)

Case [2009] NSWCA 162

New South Wales


Court of Appeal


CITATION: Bennette v Cohen (No 2) [2009] NSWCA 162
HEARING DATE(S): On the papers
 
JUDGMENT DATE: 
23 June 2009
JUDGMENT OF: Ipp JA at 1; Tobias JA at 2; Campbell JA at 77
DECISION: (1) As to the appellant’s Notice of Motion filed on 21 April 2009:
(a) Order (d) made by this Court on 24 March 2009 be rescinded and in lieu thereof the following orders be made:
“(i) The respondent to pay the appellant’s costs of the proceedings at first instance on the ordinary basis up to and including 28 January 2004 and on an indemnity basis thereafter;
(ii) The respondent to pay the appellant’s costs of the summons for leave to appeal and of the appeal on the ordinary basis but to have with respect to the latter a certificate under the Suitor’s Fund Act, 1951 if otherwise qualified.”
(b) The respondent to pay the appellant’s costs of the Notice of Motion filed by the appellant on 21 April 2009.
(2) As to the respondent’s Notice of Motion filed on 24 April 2009:
(a) Order that the Notice of Motion filed by the respondent on 24 April 2009 be dismissed with costs.
CATCHWORDS: PROCEDURE – Costs – Departing from the general rule – Order for costs on indemnity basis – Conduct of parties – Where offer of compromise made and rejected before trial – Whether offer constituted genuine compromise – Whether reasonable in circumstances to reject offer – Whether successful party entitled to costs of appeal on indemnity basis in circumstances where offer of compromise made five years before appeal - Judgments and orders – Amending, varying and setting aside – Effect of entering judgment or order - Stay of proceedings – Whether to grant stay of orders pending special leave application
LEGISLATION CITED: Suitors’ Fund Act 1951
Supreme Court Rules
Uniform Civil Procedure Rules 2005
CASES CITED: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Bashford v Information Australia (Newsletter) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160
Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81
Bennette v Cohen [2009] NSWCA 60
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Estate of the Late Virgona v De Lautour (No 2) [2007] NSWCA 323
Etttingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404
Fotheringham v Fotheringham (No 2) [1999] NSWCA 21; (1999) 46 NSWLR 194
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Leichhardt Municipal Council v Green [2004] NSWCA 341
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146
Miller v…

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AGLC
Bennette v Cohen (No 2) [2009] NSWCA 162
Case
[2009] NSWCA 162
Decision Date

CaseChat Overview and Summary

In *Bennette v Cohen (No 2)*, the New South Wales Court of Appeal considered an application to rescind and vary previous costs orders made in relation to an appeal. The dispute concerned the appropriate basis for awarding costs, specifically whether an earlier offer of compromise justified an order for indemnity costs for a portion of the proceedings.

The primary legal issues before the Court of Appeal were whether an offer of compromise made five years prior to the appeal was a genuine offer of compromise, whether it was reasonable for the respondent to reject that offer, and consequently, whether the successful party was entitled to costs on an indemnity basis for the period after the offer was made. The court also had to determine whether to grant a stay of orders pending an application for special leave to appeal to the High Court.

The Court of Appeal reasoned that the offer of compromise, despite its age, was genuine and that the respondent's rejection of it was unreasonable in the circumstances. Applying the principles governing departure from the ordinary rule for costs, the court found that the conduct of the parties warranted an order for indemnity costs from the date of the offer. The court rescinded a previous order and substituted new orders regarding the costs of the proceedings at first instance and the appeal. The court also dismissed the respondent's subsequent notice of motion seeking a stay of proceedings.

Orders

Orders of the court

(1) As to the appellant's Notice of Motion filed on 21 April 2009: (a) Order (d) made by this Court on 24 March 2009 be rescinded and in lieu thereof the following orders be made: "(i) The respondent to pay the appellant's costs of the proceedings at first instance on the ordinary basis up to and including 28 January 2004 and on an indemnity basis thereafter; (ii) The respondent to pay the appellant's costs of the summons for leave to appeal and of the appeal on the ordinary basis but to have with respect to the latter a certificate under the Suitor's Fund Act, 1951 if otherwise qualified." (b) The respondent to pay the appellant's costs of the Notice of Motion filed by the appellant on 21 April 2009. (2) As to the respondent's Notice of Motion filed on 24 April 2009: (a) Order that the Notice of Motion filed by the respondent on 24 April 2009 be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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