Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Boateng v Dharamdas [2019] NSWCA 233 Hearing dates: 2 August 2019 Date of orders: 25 September 2019 Decision date: 25 September 2019 Before: Macfarlan JA at [1];
Gleeson JA at [43];
White JA at [44]Decision: Application for leave to appeal dismissed with costs.
Catchwords: CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order final – time limit for applying to vary a final order – dispensing with filing of notice of motion under s 14 Civil Procedure Act
COSTS – offer of compromise – whether judgment “no more favourable” than offer – when order “otherwise” appropriateLegislation Cited: Civil Procedure Act 2005 (NSW), ss 14, 56, 98
District Court Act 1973 (NSW), s 127
Motor Accidents Compensation Act 1999 (NSW), s 131
Uniform Civil Procedure Rules 2005 (NSW), rr 18.2, 18.4, 20.26, 36.16, 42.15Cases Cited: AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337
Aukuso v Tahan (No 2) [2018] NSWCA 302
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104
Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
Bennette v Cohen (No. 2) [2009] NSWCA 162
Boateng v Dharamdas [2016] NSWCA 183
Burrell v R (2008) 238 CLR 218; [2008] HCA 34
Coastwide Fabrication & Erection Pty Ltd v Honeysett (No. 2) [2009] NSWCA 291
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133
Drummond & Rosen Pty Ltd v Easey & Ors (No. 2) [2009] NSWCA 331
Gamser v Nominal Defendant (1977) 136 CLR 145; [2000] HCA 7
DJL v Central Authority (2000) 201 CLR 226
Griffith v Australian Broadcasting Corporation (No. 2) [2011] NSWCA 145
Habib v Nationwide News Pty Ltd (No. 2) [2010] NSWCA 291
Hagerty v Hills Central Pty Ltd (No 2) [2018] NSWCA 279
In re Roper; Taylor v Bland (1890) 45 Ch D 126
In the Will of Gilbert (1966) 46 SR (NSW) 318
Kable v State of New South Wales (No 2) [2012] NSWCA 361
Leach v The Nominal Defendant (QBE Insurance (Australia Ltd) (No 2) [2014] NSWCA 391
Malouf v Prince (No. 2) [2010] NSWCA 51
New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1339
Phillips v Walsh (1990) 20 NSWLR 206
Preston Banking Co. v William Allsup & Sons [1895] 1 Ch 141
Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106
Roads and Traffic Authority of NSW v Palmer (No. 2) [2005] NSWCA 140
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No. 2) [2009] NSWCA 336
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Sharp v Maritime Super Pty Ltd [2013] NSWSC 389
The Uniting Church in Australia Property Trust (NSW) v Takacs (No 2)
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- AGLC
- Boateng v Dharamdas [2019] NSWCA 233
- Case
- [2019] NSWCA 233
- Decision Date
CaseChat Overview and Summary
The appeal concerned an application by the appellant, Mr Boateng, for leave to appeal against a costs order made by a judge of the Supreme Court of New South Wales. The dispute arose from an earlier proceeding where Mr Boateng had made an offer of compromise to the respondent, Ms Dharamdas. Following the judgment in that proceeding, Ms Dharamdas sought her costs, arguing that the judgment was not more favourable to Mr Boateng than his offer of compromise. The primary judge agreed and made an order for costs in favour of Ms Dharamdas. Mr Boateng subsequently sought to have this costs order varied, but his application was dismissed.
The central legal issues before the Court of Appeal were whether the costs order made by the primary judge was a final order, and if so, whether the court had the power to dispense with the usual requirement of filing a notice of motion under section 14 of the *Civil Procedure Act 2005* (NSW) to vary that order. The court also considered the circumstances in which a judgment might be considered "no more favourable" than an offer of compromise for the purposes of a costs order, and whether the primary judge had erred in their assessment.
The Court of Appeal held that the costs order made by the primary judge was final. It reasoned that the primary judge had exercised their discretion in making the costs order, and that such an order, once made, is generally final unless specific grounds for variation are established. The court further found that there was no basis to dispense with the filing of a notice of motion, as the application to vary the costs order was essentially an attempt to re-litigate the original costs decision. The court also affirmed that the primary judge had correctly applied the principles relating to offers of compromise and the assessment of whether a judgment was "no more favourable" than such an offer.
Consequently, the Court of Appeal dismissed Mr Boateng's application for leave to appeal, ordering that he pay Ms Dharamdas's costs of the application.
The central legal issues before the Court of Appeal were whether the costs order made by the primary judge was a final order, and if so, whether the court had the power to dispense with the usual requirement of filing a notice of motion under section 14 of the *Civil Procedure Act 2005* (NSW) to vary that order. The court also considered the circumstances in which a judgment might be considered "no more favourable" than an offer of compromise for the purposes of a costs order, and whether the primary judge had erred in their assessment.
The Court of Appeal held that the costs order made by the primary judge was final. It reasoned that the primary judge had exercised their discretion in making the costs order, and that such an order, once made, is generally final unless specific grounds for variation are established. The court further found that there was no basis to dispense with the filing of a notice of motion, as the application to vary the costs order was essentially an attempt to re-litigate the original costs decision. The court also affirmed that the primary judge had correctly applied the principles relating to offers of compromise and the assessment of whether a judgment was "no more favourable" than such an offer.
Consequently, the Court of Appeal dismissed Mr Boateng's application for leave to appeal, ordering that he pay Ms Dharamdas's costs of the application.
Orders
Orders of the court
Application for leave to appeal 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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