Capogreco v Rogerson

The applicants, Capogreco and others, sought leave to appeal against orders made by the primary judge concerning the apportionment of costs following a trial. The dispute arose from a complex litigation where the applicants had achieved only partial success. The appeal concerned the principles governing the allocation of costs, particularly where issues were intertwined and where the costs assessor had made allocations after the event.

The central legal issues before the Court of Appeal were whether the costs should have been apportioned according to separate causes of action, even where those causes of action were intertwined, and whether the apportionment should have been based on the pre-trial costs of preparing evidence. Additionally, the court considered whether a costs assessor possessed the power to allocate costs after the event, and whether a *Calderbank* offer, which proposed a fixed sum for costs, constituted a genuine offer of compromise.

Basten and Simpson JJA dismissed the application for leave to appeal. Their Honours reasoned that the primary judge’s approach to costs was not demonstrably wrong in law. The court found that the intertwining of issues made a strict apportionment by cause of action impractical and that the costs assessor had acted within their powers in allocating costs after the event. The *Calderbank* offer was also considered to be a valid offer of compromise, despite its fixed nature.

Consequently, the application for leave to appeal was dismissed, and the applicants were ordered to pay the first respondent’s costs.