Della Franca v Lorenzato; Burwood Council v Lorenzato (No 2)

The proceedings involved two appeals heard together: *Della Franca v Lorenzato* and *Burwood Council v Lorenzato (No 2)*. The appeals concerned the variation of a costs order made by the primary judge. The central dispute revolved around whether the non-acceptance of offers of compromise and Calderbank offers at first instance justified a departure from the ordinary costs consequences, specifically in relation to the application of Uniform Civil Procedure Rules (UCPR) r 42.15(2). The Court of Appeal comprised Basten, Macfarlan, and Brereton JJA.

The primary legal issue before the Court of Appeal was whether it should exercise its discretion under UCPR r 42.15(2) to "order otherwise" regarding the costs of the proceedings at first instance. This required the court to consider the impact of the parties' conduct, particularly their failure to accept certain settlement offers, on the appropriate cost orders. The court also had to determine the costs of the appeals themselves.

The Court of Appeal reasoned that the primary judge's costs order, which had awarded costs on an indemnity basis from a certain date, was not justified. The court found that while the offers made by Burwood Council were relevant, they did not warrant the significant departure from the ordinary costs rule that the primary judge had ordered. Consequently, the Court of Appeal set aside the original costs order in the *Burwood Council v Lorenzato* appeal. In the *Della Franca* appeal, Mr Della Franca's notice of motion was dismissed.

In the *Burwood Council* appeal, the Court of Appeal ordered that Ms Lorenzato pay Burwood Council’s costs of the appeal, including the costs of a notice of motion filed by the Council. In lieu of the primary judge's order, the Court ordered that Burwood Council pay Ms Lorenzato’s costs on the ordinary basis for the proceedings at first instance up to 29 May 2020, and that Ms Lorenzato pay the Council’s costs on the indemnity basis for the proceedings at first instance thereafter. In the *Della Franca* appeal, Mr Della Franca’s notice of motion was dismissed with costs.