Cleere v Matic Service Pty. Ltd. [No. 2]

Cleere v Matic Service Pty. Ltd. [No. 2] concerned an appeal to the Supreme Court of New South Wales, Court of Appeal, following a trial in the District Court. The appellant, Cleere, had been successful on appeal, although not entirely successful at trial, and sought to recover their costs. The central dispute revolved around the appellant's entitlement to indemnity costs, particularly in light of an offer of compromise made by the respondent, Matic Service Pty. Ltd., pursuant to Part 19A of the District Court Rules.

The Court of Appeal was required to determine whether the appellant was entitled to the entirety of their costs of the appeal, given that they had been successful on appeal but had also been found contributorily negligent at trial. This involved considering the court's discretion regarding costs, specifically in relation to the offer of compromise and the provisions of s.76 of the Supreme Court Act. The court had to weigh the overall success of the appellant on appeal against the partial success and the existence of the offer of compromise.

The Court of Appeal ultimately ordered that the respondent pay 80% of the appellant's costs of the appeal, assessed on a party/party basis. This outcome reflects a discretionary assessment of the competing factors, including the appellant's ultimate success on appeal and the respondent's offer of compromise, which likely influenced the apportionment of costs. The respondent was also granted a certificate under the Suitors Fund Act 1951 (NSW), if entitled.