BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR. YOUNG SHIRE COUNCIL v. CUMMINS & ANOR. (NO. 2) [2005] NSWCA 69
HEARING DATE(S):
On papers
JUDGMENT DATE:
17 March 2005
JUDGMENT OF:
Beazley JA at 1; Ipp JA at 33; McColl JA at 34
DECISION:
Appeal No. 41169/03 (Brymount's appeal) ; 1 That the first respondent pay the appellant's costs up to 27 January 2003 on a party and party basis;; 2 That the first respondent pay the appellant's costs in respect of the trial from 28 January 2003 on an indemnity basis;; 3 That the first respondent pay the appellant's costs in respect of the appeal on a party and party basis; and; 4 That the first respondent have a Certificate under the Suitors Fund Act 1951 (NSW), if so entitled.; 5. That there be no order as to costs in respect of the second respondent.; Appeal No. 41170/03 (Council's appeal) ; 1 That the first respondent pay the appellant's costs up to 17 June 2002 on a party and party basis;; 2. That the first respondent pay the appellant's costs in respect of the trial from 18 June 2002 on an indemnity basis;; 3 That the first respondent pay the appellant's costs in respect of the appeal on a party and party basis; and; 4. That the first respondent have a Certificate under the Suitors Fund Act 1951 (NSW), if so entitled.; 5. That there be no order as to the costs in respect of the second respondent.
CATCHWORDS:
COSTS - offers of compromise - Calderbank offers - relevance of Calderbank offers to offers of compromise made under the District and Supreme Court Rules - courts' general discretion as to costs - COSTS - indemnity costs - Calderbank offer made prior to trial but not renewed or revived between trial and appeal - whether party is entitled to indemnity costs extending from the trial to appeal proceedings in the absence of a fresh offer of compromise
CA 41169/2003 - BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN) 003 200 459) (Appellant) PATRICIA KAREN CUMMINS (First Respondent) YOUNG SHIRE COUNCIL…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Brymount Pty Ltd v Cummins (No 2)
Sign in free to access the full text
Details
AGLC
Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69
Case
[2005] NSWCA 69
Decision Date
CaseChat Overview and Summary
In *Brymount Pty Ltd v Cummins (No 2)*, the New South Wales Court of Appeal considered the interplay between offers of compromise made under court rules and *Calderbank* offers, particularly in relation to the entitlement to indemnity costs. The dispute concerned the appropriate basis for awarding costs following a trial and subsequent appeals.
The primary legal issues before the Court of Appeal were whether a *Calderbank* offer made before trial, but not renewed or revived between the trial and the appeal, could justify an award of indemnity costs for the appeal proceedings. The Court also had to determine the scope of its general discretion as to costs and how it applied to the specific circumstances of the case, including the timing of the *Calderbank* offer relative to the different stages of the litigation.
The Court reasoned that a *Calderbank* offer, to be effective in justifying indemnity costs for subsequent proceedings, must be kept on foot and remain a viable offer of compromise throughout those proceedings. An offer made before trial, which was not revived or renewed after the trial concluded and before the appeal commenced, could not serve as the basis for an award of indemnity costs for the appeal. The Court affirmed that while it possessed a broad discretion regarding costs, the entitlement to indemnity costs typically required a clear indication from a party that they were prepared to settle on specific terms, and that the other party had unreasonably refused those terms.
The Court ordered that the first respondent pay the appellant's costs up to specific dates on a party and party basis, and thereafter in respect of the trial and the appeal on an indemnity basis. There were no orders as to costs concerning the second respondent. The first respondent was also granted a Certificate under the *Suitors Fund Act 1951* (NSW), if entitled.
Orders
Orders of the court
Appeal No. 41169/03 (Brymount's appeal) ; 1 That the first respondent pay the appellant's costs up to 27 January 2003 on a party and party basis;; 2 That the first respondent pay the appellant's costs in respect of the trial from 28 January 2003 on an indemnity basis;; 3 That the first respondent pay the appellant's costs in respect of the appeal on a party and party basis; and; 4 That the first respondent have a Certificate under the Suitors Fund Act 1951 (NSW), if so entitled.; 5. That there be no order as to costs in respect of the second respondent.; Appeal No. 41170/03 (Council's appeal) ; 1 That the first respondent pay the appellant's costs up to 17 June 2002 on a party and party basis;; 2. That the first respondent pay the appellant's costs in respect of the trial from 18 June 2002 on an indemnity basis;; 3 That the first respondent pay the appellant's costs in respect of the appeal on a party and party basis; and; 4. That the first respondent have a Certificate under the Suitors Fund Act 1951 (NSW), if so entitled.; 5. That there be no order as to the costs in respect of the second respondent.