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 JADecision: (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
Category: Costs Parties: Dennis Bluth & the 274…
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- Case
- [2024] NSWCA 194
- Decision Date
CaseChat Overview and Summary
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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