Bluth v Boyded Industries Pty Ltd (No 2)

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194
Hearing dates: On the papers
Date of orders: 16 August 2024
Decision date: 16 August 2024
Before: Bell CJ
Gleeson JA
Harrison JA
Decision:

(1) Dispense with the requirement in Uniform Civil Procedure Rules 2005 (NSW), r 18.2(1) for the filing of a notice of motion by the appellant / cross-respondent (HWLE) in respect of its application under r 36.16(3A) to vary the costs orders made on 4 April 2024.

(2)  In relation to the proceedings below, order that order (2) made in this Court on 4 April 2024 be varied so that the costs ordered to be paid be payable on the ordinary basis up to 16 August 2022 and on the indemnity basis thereafter.

(3)  Order that the costs of this application be costs in the appeal.

Catchwords:

COSTS – party/party – offers of compromise – where the appellants seek variations to the costs orders made on appeal – where appellants issued offers of compromise to the respondent prior to the commencement of the appeal proceedings – where no notice of motion to vary the costs orders was filed within 14 days of the orders being entered as required by r 36.16(3A) UCPR – whether a letter sent between the parties can be characterised as an application or an intention to make an application to vary a costs order – requirement for a notice of motion dispensed with pursuant to s 14 Civil Procedure Act 2005 (NSW) – where the appellants obtained a judgment that was no less favourable to them than the terms of the offers issued to the respondent – where offers of compromise not renewed between the trial and the appeal

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 14, 98

Uniform Civil Procedure Rules rr 1.12, 18.2, 20.26, 36.16, 42.15A

Cases Cited:

Aukuso v Tahan (No 2) [2018] NSWCA 302

Bathurst Regional Council v Thompson (No 2) [2012] NSWCA 420

Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67

Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109

Coastwide Fabrication and Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291

Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248

Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133

Eliezer v The Council of St Andrew’s Cathedral School (No 2) [2021] NSWCA 227

Grace v Grace (No 9) [2014] NSWSC 1239

Kable v State of New South Wales (No 2) [2012] NSWCA 361

Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Moore v Woodforth (No 2) [2003] NSWCA 46

Morgan v Johnson (1998) 44 NSWLR 578

Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Short v Crawley (No 45) [2013] NSWSC 1541

Category:Costs
Parties: Dennis Bluth & the 274…
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Details
Case
[2024] NSWCA 194
Decision Date

CaseChat Overview and Summary

The appellants sought variations to costs orders made on appeal in proceedings between Bluth and Boyded Industries Pty Ltd. The appellants had issued offers of compromise to the respondent prior to the commencement of the appeal proceedings.

The central legal issues before the court were whether a letter sent between the parties could be characterised as an application or an intention to make an application to vary the costs orders, and whether the requirement for a notice of motion under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) could be dispensed with pursuant to section 14 of the Civil Procedure Act 2005 (NSW). The court also considered the effect of the appellants obtaining a judgment no less favourable than their offers of compromise, and the fact that the offers of compromise were not renewed between the trial and the appeal.

The court reasoned that the letter sent between the parties did not constitute a formal application to vary the costs orders. However, it determined that the requirement for a notice of motion could be dispensed with under section 14 of the Civil Procedure Act 2005 (NSW) given the circumstances. The court also noted that the appellants had obtained a judgment that was no less favourable than their offers of compromise, and that the offers had not been renewed.

The court ordered that the requirement for a notice of motion be dispensed with for the application to vary the costs orders. It further ordered that the costs payable in relation to the proceedings below be on the ordinary basis up to 16 August 2022 and on the indemnity basis thereafter. The costs of this application were ordered to be costs in the appeal.

Orders

Orders of the court

(1) Dispense with the requirement in Uniform Civil Procedure Rules 2005 (NSW), r 18.2(1) for the filing of a notice of motion by the appellant / cross-respondent (HWLE) in respect of its application under r 36.16(3A) to vary the costs orders made on 4 April 2024.

(2) In relation to the proceedings below, order that order (2) made in this Court on 4 April 2024 be varied so that the costs ordered to be paid be payable on the ordinary basis up to 16 August 2022 and on the indemnity basis thereafter.

(3) Order that the costs of this application be costs in the appeal.

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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