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:
Solicitors:
G Foster (Appellant)
D Woods (Respondents)
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:
- Date of Decision:
- 01 December 2021
- Before:
- Robb J
- File Number(s):
- 2015/228434
JUDGMENT
-
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.”
-
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”.
-
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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- Case
- [2023] NSWCA 24
- Decision Date
CaseChat Overview and Summary
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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