Cooper v Kinsella (No 2) - [2011] NSWCA 140

Court of Appeal

New South Wales

Case Title: Cooper v Kinsella (No 2)

Medium Neutral Citation: [2011] NSWCA 140

Hearing Date(s): On the papers

Decision Date: 03 June 2011

Jurisdiction:

Before:
Allsop P at 1; Hodgson JA at 2; Sackville AJA at 22

Decision:
(1) Order that Mr Cooper's legal costs of the proceedings below, to be paid by the respondents, be assessed on an ordinary basis up to and including 28 September 2009 and on an indemnity basis thereafter.
(2) Order that Mr Cooper's costs of the appeal, to be paid by the respondents, be assessed on an ordinary basis up to and including 21 January 2011 and on an indemnity basis thereafter.
(3) Order that the respondents pay Mr Cooper's costs of the notice of motion filed 21 March 2011.
[ Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
COSTS - Application to vary costs order - Application brought within 14 days limited by UCPR 36.16(3A) but referring to wrong rule - Amended after 14 days to refer to correct rule - Whether indemnity costs justified by contract - Offers of compromise made - Whether court should make order excluding indemnity costs.

Legislation Cited:
Civil Procedure Act 2005 ss 64 and 65
Uniform Civil Procedure Rules (UCPR) rr 36.16, 51.58

Cases Cited:
Abigroup Ltd v Sandtara Pty Ltd [2002] NSWCA 45
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Gomba Holdings (UK) Limited v Minories Finance Limited (No 2) [1993] Ch 171
Nominal Defendant v Hawkins [2011] NSWCA 93
South Eastern Sydney Area Health Service v King [2006] NSWCA 2

Texts Cited:

Category: Costs

Parties:
Benjamin Robert COOPER (appellant)
Ian Anthony KINSELLA (first respondent)
Simon STONIER (second respondent)
Scott Benjamin WRIGHT (third respondent)

Representation

- Counsel:
P BEALE/ E CHRYSOSTOMOU (appellant)
G B COLYER (respondents)

- Solicitors:
Mills Oakley Lawyers (appellant)
Kemp Strang Lawyers (respondents)

File number(s): 2008/319361

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

Judgment

ALLSOP P: I agree with Hodgson JA.

HODGSON JA: The principal decision of this appeal was given on 11 March 2011: [2011] NSWCA 45. On that occasion, the Court made the following orders:

(1) Appeal allowed.

(2) Orders below set aside.

(3) Judgment for Mr Cooper against the respondents for $133,923.

(4) Order that the respondents pay Mr Cooper interest on $133,923 from 1 September 2005 until to-day at prescribed rates.

(5) Order that the respondents pay Mr Cooper's costs of the proceedings below.

(6) Order that the respondents pay Mr Cooper's costs of the appeal, and that they have a certificate under

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 Cooper v Kinsella (No 2)

Details

AGLC: Cooper v Kinsella (No 2) [2011] NSWCA 140
Case: [2011] NSWCA 140
Decision Date: 03 June 2011

CaseChat Overview and Summary

The case of *Cooper v Kinsella (No 2)* concerned an application to vary a costs order made by the primary judge. The dispute revolved around whether the respondents should be ordered to pay the appellant's legal costs on an indemnity basis, particularly in light of offers of compromise made during the proceedings. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the initial application to vary the costs order, which initially referred to an incorrect rule but was later amended after the 14-day time limit stipulated by UCPR 36.16(3A), should be permitted. Furthermore, the court had to determine whether the terms of a contract justified an order for indemnity costs, and whether, in light of offers of compromise, the court should make an order excluding indemnity costs.

The Court of Appeal reasoned that while the initial application to vary the costs order was made within the 14-day period prescribed by UCPR 36.16(3A), it referred to the wrong rule. The subsequent amendment to refer to the correct rule occurred after this time limit had expired. Despite this, the court considered the substance of the application and the circumstances surrounding the offers of compromise. The court ultimately ordered that the appellant's legal costs of the proceedings below, to be paid by the respondents, be assessed on an ordinary basis up to and including 28 September 2009 and on an indemnity basis thereafter. Similarly, the appellant's costs of the appeal were to be assessed on an ordinary basis up to and including 21 January 2011 and on an indemnity basis thereafter. The respondents were also ordered to pay the appellant's costs of the notice of motion filed on 21 March 2011.

Orders

Orders of the court

(1) Order that Mr Cooper's legal costs of the proceedings below, to be paid by the respondents, be assessed on an ordinary basis up to and including 28 September 2009 and on an indemnity basis thereafter.

(2) Order that Mr Cooper's costs of the appeal, to be paid by the respondents, be assessed on an ordinary basis up to and including 21 January 2011 and on an indemnity basis thereafter.

(3) Order that the respondents pay Mr Cooper's costs of the notice of motion filed 21 March 2011.

[ Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Cooper v Kinsella (No 2)
Medium Neutral Citation:	[2011] NSWCA 140
Hearing Date(s):	On the papers
Decision Date:	03 June 2011
Jurisdiction:
Before:	Allsop P at 1; Hodgson JA at 2; Sackville AJA at 22
Decision:	(1) Order that Mr Cooper's legal costs of the proceedings below, to be paid by the respondents, be assessed on an ordinary basis up to and including 28 September 2009 and on an indemnity basis thereafter. (2) Order that Mr Cooper's costs of the appeal, to be paid by the respondents, be assessed on an ordinary basis up to and including 21 January 2011 and on an indemnity basis thereafter. (3) Order that the respondents pay Mr Cooper's costs of the notice of motion filed 21 March 2011. [ Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - Application to vary costs order - Application brought within 14 days limited by UCPR 36.16(3A) but referring to wrong rule - Amended after 14 days to refer to correct rule - Whether indemnity costs justified by contract - Offers of compromise made - Whether court should make order excluding indemnity costs.
Legislation Cited:	Civil Procedure Act 2005 ss 64 and 65 Uniform Civil Procedure Rules (UCPR) rr 36.16, 51.58
Cases Cited:	Abigroup Ltd v Sandtara Pty Ltd [2002] NSWCA 45 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Gomba Holdings (UK) Limited v Minories Finance Limited (No 2) [1993] Ch 171 Nominal Defendant v Hawkins [2011] NSWCA 93 South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Texts Cited:
Category:	Costs
Parties:	Benjamin Robert COOPER (appellant) Ian Anthony KINSELLA (first respondent) Simon STONIER (second respondent) Scott Benjamin WRIGHT (third respondent)
Representation
- Counsel:	P BEALE/ E CHRYSOSTOMOU (appellant) G B COLYER (respondents)
- Solicitors:	Mills Oakley Lawyers (appellant) Kemp Strang Lawyers (respondents)
File number(s):	2008/319361
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction: