Black Head Bowling Club Ltd v Harrower (No 2)

Black Head Bowling Club Ltd (the appellant) sought to vary a costs order made by the Court of Appeal of New South Wales following an appeal. The eighth respondent, Mr Edstein, was the party against whom the variation was sought. The dispute concerned whether the costs order should be amended to reflect a different basis of indemnity or to account for a point not raised during the principal appeal.

The Court was required to determine whether it had the power to vary the costs order, particularly in light of the fact that the principal appeal judgment had already addressed all issues raised on costs. Specifically, the Court had to consider whether the appellant could introduce new submissions on a point not previously argued on appeal after the principal judgment had been delivered, and whether a prior offer made by Mr Edstein was unreasonable in its rejection, thereby justifying a departure from the ordinary costs order.

The Court held that the principal appeal judgment had comprehensively dealt with all costs issues, and the appellant had not demonstrated any error in the original costs order. The Court found that the appellant's attempt to raise a new point after the judgment was not a valid basis for varying the order. Furthermore, the Court determined that Mr Edstein's offer, while not strictly complying with Uniform Civil Procedure Rules 2005 (NSW) r 20.26, was not so unreasonable as to warrant a departure from the ordinary costs order, especially as the appellant had not succeeded on the relevant issue.

Consequently, the Court dismissed the notice of motion filed by Black Head Bowling Club Ltd and ordered that the appellant pay Mr Edstein’s costs of the notice of motion.