Cooper v Kinsella (No 2)

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.