Coombes v Roads and Traffic Authority (No 2)

The case of *Coombes v Roads and Traffic Authority (No 2)* concerned an appeal and cross-claims arising from a trial judgment. The primary dispute involved the appellant's claim against the Roads and Traffic Authority (RTA), with Bombala Council and a third respondent also involved in cross-claims. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several issues relating to costs, including whether to make a *Bullock* or *Sanderson* order, which addresses the liability of an unsuccessful defendant for the costs of a successful defendant. The court also considered whether it was fair to impose such costs, particularly in light of an alleged failure to admit responsibility where it should have been known. Further, the court examined the circumstances under which indemnity costs might be awarded on appeal, especially in the absence of a fresh offer of compromise or unreasonable conduct. The efficacy of an offer of compromise limited to liability, and its interaction with the Uniform Civil Procedure Rules 2005 (NSW) and its predecessor, the District Court Rules 1973 (NSW), were also central to the determination.

The court reasoned that a *Bullock* or *Sanderson* order was appropriate given the circumstances, finding it fair to impose costs on Bombala Council for the RTA's costs. The court declined to make an indemnity costs order on appeal, noting the absence of a fresh offer of compromise and no unreasonable or delinquent conduct by the appellant. The court also considered the offer of compromise made pursuant to the District Court Rules, finding it capable of acceptance and that the verdict was no less favourable to the plaintiff than the offer. The court determined that the savings provisions of the Uniform Civil Procedure Act 2005 (NSW) applied, allowing the court to make orders otherwise than in strict accordance with the new rules.

The court made various orders regarding the payment of costs. Bombala Council was ordered to pay the RTA's costs incurred on the appellant's claim against the RTA, both at trial and on appeal, directly to the RTA. Bombala Council was also ordered to pay the appellant's costs of prosecuting her claim against the RTA, both at trial and on appeal, with trial costs on a solicitor/client basis and appeal costs on a party/party basis. Furthermore, Bombala Council was ordered to pay the RTA's costs of its amended notices of cross-claim and Bombala Council's notices of cross-claim, as well as the third respondent's costs of its notice of third cross-claim, at both trial and on appeal.