Bluth v Boyded Industries Pty Ltd (No 2)

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.