Bonanno v Finamore (No 2)

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bonanno v Finamore (No 2) [2023] NSWCA 24
Hearing dates: On the papers
Date of orders: 22 February 2023
Decision date: 22 February 2023
Before: Ward P; Macfarlan JA; Basten AJA
Decision:

Vary order (2) made on 20 December 2022 so that it provides:

(2)   Dismiss the appeal with costs, such costs (including the costs of the motion to vary this order) to be assessed on the ordinary basis up to and including 23 August 2022 and thereafter on an indemnity basis.

Catchwords:

CIVIL PROCEDURE - appeal - costs - indemnity costs - application to vary costs order - offer of compromise - whether benefit foregone - offer not accepted - offeror successful on appeal - application for indemnity costs - whether court should otherwise order

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A, 51.47, 51.48

Cases Cited:

Bonanno v Finamore [2022] NSWCA 276

Fabre v Liu (No 2) [2015] NSWCA 312

Leach v The Nominal Defendant (QBE Insurance (Aust) Ltd) (No 2) [2014] NSWCA 391

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

Ryan v Workers Compensation Nominal Insurer (No 2) [2020] NSWCA 129

Category:Costs
Parties: Salvatore Antonio Bonanno (Appellant)
Nicola Finamore (First Respondent)
Weisen Zhou (Second Respondent)
Representation:

Counsel:
G Foster (Appellant)
D Woods (Respondents)

Solicitors:
Phillip A Wilkins & Associates (Appellant)
LegalVision (Respondents)
File Number(s): 2022/186533; 2022/254111
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity
Citation:

[2021] NSWSC 1558

[2022] NSWSC 641

Date of Decision:
01 December 2021
Before:
Robb J
File Number(s):
2015/228434

JUDGMENT

  1. THE COURT: On 20 December 2022 the Court delivered its principal judgment in this matter, granting leave to appeal but dismissing the appeal “with costs”: Bonanno v Finamore [2022] NSWCA 276. On 3 January 2023, within the 14 days permitted for a motion seeking to vary an entered order, the respondents sought an order for costs to be assessed on an indemnity basis after 23 August 2022, that being the day on which they served an offer of compromise under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 20.26 as applied in this Court by r 51.47. The proposed amended form of order 2 was:

“Dismiss the appeal with costs, such costs (including the costs of the motion to vary the earlier order) to be assessed on the ordinary basis up to and including 23 August 2022 and thereafter on an indemnity basis.”

  1. UCPR r 42.15A, taken in conjunction with r 51.48, provides that a defendant obtaining an outcome no less favourable than an unaccepted offer of compromise is entitled to costs on an indemnity basis from the day following the day on which the offer was made, unless the court “orders otherwise”.

  2. In written submissions filed on 6 February 2023, in accordance with directions given by the Registrar, counsel for the respondents submitted that the offer complied with the requirements of the UCPR, including a submission, supported by…

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Details
Case
[2023] NSWCA 24
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal, comprising Ward P, Macfarlan JA, and Basten AJA, considered an application to vary a costs order made on 20 December 2022. The underlying dispute concerned an appeal where the appellant, Bonanno, was ultimately successful in having the appeal dismissed with costs. The application to vary the costs order related to the assessment of those costs, specifically whether they should be awarded on an ordinary or indemnity basis from a certain date.

The primary legal issue before the Court of Appeal was whether to vary the existing costs order to reflect an indemnity basis for costs incurred after 23 August 2022. This question arose in circumstances where an offer of compromise had been made by the respondent, Finamore, which was not accepted by Bonanno. Bonanno was successful on appeal, meaning Finamore, as the offeror, had not achieved a better outcome than their offer. The Court was required to determine if the circumstances warranted an order for indemnity costs from the date of the unaccepted offer.

The Court reasoned that the purpose of an offer of compromise is to encourage settlement and that a party who rejects an offer and subsequently fails to achieve a better outcome on appeal may be penalised in costs. In this instance, the Court found that the offer of compromise made by Finamore was not accepted, and Bonanno was ultimately unsuccessful in their appeal. Consequently, the Court varied its previous order to reflect that costs should be assessed on an ordinary basis up to and including 23 August 2022, and thereafter on an indemnity basis, reflecting the unaccepted offer of compromise. The appeal was dismissed with costs, with the costs of the motion to vary the order also to be assessed on the same basis.

Orders

Orders of the court

Vary order (2) made on 20 December 2022 so that it provides:

(2) Dismiss the appeal with costs, such costs (including the costs of the motion to vary this order) to be assessed on the ordinary basis up to and including 23 August 2022 and thereafter on an indemnity basis.

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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