Brighten v Traino (No 2)

[2019] NSWCA 203

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brighten v Traino (No 2) [2019] NSWCA 203

Hearing dates:

On the papers

Decision date:

16 August 2019

Before:

Basten JA; Gleeson JA; Brereton JA

Decision:

(1)   Vary the orders made on 8 July 2019 by revoking order (2)(d), with the intention that order (3) made in the District Court on 30 July 2018 will continue to operate.

 

(2)   Otherwise dismiss the applicants’ notice of motion filed 18 July 2019.

 (3)   Order that the first and second respondents (the applicants on the motion) pay the appellant’s costs of the motion.

Catchwords:

COSTS – reinstatement of costs order at trial – offer of compromise in relation to appeal – early ‘walk away’ offer – no evidence of costs incurred – whether genuine compromise – whether appeal doomed to fail – offerors’ position not explained – Uniform Civil Procedure Rules 2005 (NSW), r 20.26

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 20.26

Cases Cited:

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Category:

Costs

Parties:

Erin Brighten (Appellant)
Pasquali John Traino (First Respondent)
Sting Bar Pty Ltd (Second Respondent)
Brett William Richardson (Third Respondent)

Representation:

Counsel:
S E McCarthy (Appellant)

  Solicitors:
Norwest Lawyers (Appellant)
Wotton & Kearney Lawyers (First and Second Respondents)
Macedone Legal (Third Respondent)

File Number(s):

2018/193822

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

30 May 2018

Before:

Gibb DCJ

File Number(s):

2016/334657

Judgment

1. THE COURT: On 8 July 2019 this Court upheld, in part, an appeal by Ms Brighten with respect to a judgment given in the District Court on 30 May 2018. The trial judge had dismissed her claims against each of the three respondents in this Court. This Court set aside that order and gave judgment in favour of Ms Brighten against Brett William Richardson, the third respondent to the appeal. However, the Court dismissed her appeal with respect to the first respondent (Pasquali John Traino) and the second respondent (Sting Bar Pty Ltd). In order to give effect to these outcomes, the Court set aside orders (1) and (5) made in the District Court. This Court upheld the judgment below so far as it dismissed the plaintiff’s claims against the first and second defendants and ordered that the plaintiff pay the first and second defendants’ costs of the trial (order (2)(d)).

Costs of trial

2. At that time, the Court was not aware that the costs order made on 30 May 2018 had been varied on 30 July 2018 with respect to the costs of the first and second defendants. The new order read as follows:

“3.   I order the plaintiff to pay the first and second defendants’ costs of the proceedings:

(a)   on an ordinary basis until 16 February 2018; and

(b)   thereafter (and including…