Edmonds v Barrington Winstanley Group Pty Ltd (No 2)

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

Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124

Category:

Costs

Parties:

Sandra Edmonds (First Appellant)
David Edmonds (Second Appellant)
Barrington Winstanley Group Pty Ltd (Respondent)

Representation:

Counsel:
Mr L Smits (Sol) (Appellants)
Mr M R Pesman SC and Mr F Salama (Respondent)

Solicitors:
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:

[2022] NSWSC 531

Date of Decision:

04 May 2022

Before:

Darke J

File Number(s):

2021/112414

JUDGMENT

1. 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.

2. 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…