Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Edmonds v Barrington Winstanley Group Pty Ltd (No 2) [2023] NSWCA 197 Hearing dates: On the papers Date of orders: 22 August 2023 Decision date: 22 August 2023 Before: Meagher JA, Leeming JA, Stern JA Decision: The appellants should pay the respondent’s costs of the appeal, including on the issue of costs, to be assessed on the ordinary basis if not agreed
Catchwords: COSTS - Party/Party - Bases of quantification - offer of compromise/Calderbank offer - where global offer made to resolve appeal and two related bankruptcy proceedings - reasonableness of conduct - limited information before the Court concerning other proceedings - conduct of appellants not so unreasonable as to justify an order for indemnity costs
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 20.26
Cases Cited: E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296
Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Category: Costs Parties: Sandra Edmonds (First Appellant)
David Edmonds (Second Appellant)
Barrington Winstanley Group Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
Mr L Smits (Sol) (Appellants)
Mr M R Pesman SC and Mr F Salama (Respondent)
Murray Laws Pty Ltd (Appellants)
Ark Legal (Respondent)
File Number(s): 2022/305853 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 04 May 2022
- Before:
- Darke J
- File Number(s):
- 2021/112414
JUDGMENT
-
THE COURT: On 24 July 2023, the Court delivered judgment and made orders refusing the appellants’ notice of motion seeking to rely upon further evidence and dismissing the appeal. The Court also ordered that the respondent should file short submissions on costs within seven days and the appellant file short submissions in reply within fourteen days of the Court’s orders.
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The respondent filed submissions on costs on 28 July 2023. The respondent seeks an order that the appellants pay its costs on an ordinary basis until 21 March 2023 and on an indemnity basis thereafter. The respondent relies, in this regard, upon a global offer which was made on 6 March 2023 to resolve the appeal and two related bankruptcy proceedings (“the 6 March 2023 Offer”). The respondent accepts that the 6 March 2023 Offer would not necessarily, of itself, justify an order for indemnity costs. It submits, however, that the conclusion that an order for indemnity costs is appropriate is reinforced by the appellants’ conduct of the appeal. In this regard the respondent submits that costs were wasted by the appellants in addressing a substantial number of appeal grounds that were ultimately abandoned at the hearing and in addressing an application for fresh evidence which, the respondent submits, had no prospect of success and would not have altered the outcome of the appeal even…
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- Case
- [2023] NSWCA 197
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal of New South Wales was whether the appellants' conduct in refusing the respondent's global offer of compromise was so unreasonable as to warrant an order for indemnity costs. This required the Court to assess the reasonableness of the appellants' decision in light of the information available to them at the time the offer was made, and to consider the respondent's conduct in making the offer.
The Court found that while the offer was global and encompassed multiple proceedings, there was insufficient information before it regarding the other bankruptcy proceedings to definitively conclude that the appellants' refusal was unreasonable. The Court noted that the respondent had not provided comprehensive details of the other proceedings to justify an order for indemnity costs. Consequently, the Court determined that the appellants' conduct, while perhaps not ideal, did not reach the threshold of unreasonableness required to depart from the ordinary basis of costs assessment.
Accordingly, the Court ordered that the appellants pay the respondent's costs of the appeal, including the costs of the hearing on the issue of costs, to be assessed on the ordinary basis unless otherwise agreed.
Orders
Orders of the court
The appellants should pay the respondent’s costs of the appeal, including on the issue of costs, to be assessed on the ordinary basis if not agreed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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