Galea v Farrugia (No 2)

[2013] NSWCA 376

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Galea v Farrugia (No 2) [2013] NSWCA 376

Hearing dates:

On the papers

Decision date:

13 November 2013

Before:

Bathurst CJ at [1]
Macfarlan JA at [2]
Ward JA at [9]

Decision:

The respondents' Notice of Motion is dismissed with costs.

[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 - successful respondents sought indemnity costs - UCPR r 20.26 offer of compromise and Calderbank offer to settle appeal on a "walk away basis" - inference that respondents had undertaken little work on the appeal when offers made - no genuine compromise offered - application refused

Cases Cited:

Vagg v McPhee (No 2) [2013] NSWCA 126

Category:

Costs

Parties:

Paul Galea (First Appellant)
Mary Galea (Second Appellant)
Lepipi Pty Ltd (Third Appellant)
David Farrugia (First Respondent)
Mary Farrugia (Second Respondent)
J & L Cauchi Pty Ltd (Third Respondent)
Joe Cauchi (Fourth Respondent)

Representation:

Counsel:
M J Neil QC (Appellants)
P Barham (First and Second Respondents)
J A Hogan-Doran (Third and Fourth Respondents)
Solicitors:
Mosca & Scott (Appellants)
NSW Compensation Lawyers (First and Second Respondents)
Balmain Lawyers (Third and Fourth Respondents)

File Number(s):

CA 2012/82184

 Decision under appeal 

Jurisdiction:

9111

Citation:

Galea v Farrugia [2012] NSWSC 77

Date of Decision:

2012-02-21 00:00:00

Before:

Hislop J

File Number(s):

2003/91314

Judgment

1. BATHURST CJ: I agree with Macfarlan JA.

1. MACFARLAN JA: The Court delivered judgment on this appeal on 7 June 2013 ([2013] NSWCA 164), following a hearing on 10, 11 and 12 April 2013. It ordered that the appeal be dismissed and that the appellants pay the first and second respondents' (referred to below as the "respondents") costs of the appeal.

1. By Notice of Motion filed on 17 June 2013, the respondents seek a variation of this costs order. As explained in their written submissions, they seek "costs on the usual party/party basis until 9.00 am on 27 June 2012 and indemnity costs thereafter, alternatively costs on the usual basis until 9.00 am on 7 December 2012 and indemnity costs thereafter". They rely upon an Offer of Compromise, served on 26 June 2012, offering to settle the appeal on a "walk away basis", that is, that the appeal be dismissed with the parties bearing their own costs. In the alternative they rely upon a Calderbank letter of 6 December 2012 making the same offer. Neither offer was accepted.

1. The appeal was from a judgment of Hislop J of 21 February 2012. The appellants' Notice of Appeal was filed on 18 May 2012. Their written submissions (in their unamended form) were filed on 15 August 2012, with their statement in narrative form challenging findings of fact (see UCPR r 51.36(2)) (again prior to amendment) apparently being filed about the same time. The respondents filed a reply to the appellants' statement in narrative form challenging findings of fact on 1 February 2013 and their written submissions on 4 February 2013.

1. In opposition to the respondents' claim for indemnity costs, the appellants' submitted that neither offer involved an element of genuine compromise by the respondents. If this be the case, the application for indemnity costs should be refused (see Vagg v McPhee (No 2) [2013] NSWCA 126).

1. The appellants submitted that the chronology of events to which I have referred above gives rise to the inference that the respondents would have undertaken little work, and therefore incurred little expense, in relation to the appeal before the dates of 27 June and 7 December 2012 upon which the offers were made. There is no evidence suggesting otherwise and I accept that submission. I consider that the inference is a reasonable one as the respondents' written submissions and response to the appellants' r 51.36(2) document were not filed until approximately seven months after the Offer of Compromise and two months after the Calderbank offer.

1. In these circumstances, the appellants' submission that the respondents' offers did not involve any element of genuine compromise should be accepted. At most, the respondents offered to give up an entitlement to their costs incurred prior to the offers being made but there is no basis for concluding that they had incurred any significant costs by the dates of the offers.

1. For these reasons, the respondents' application for indemnity costs should be rejected and their Notice of Motion dismissed with costs.

1. WARD JA: I agree with Macfarlan JA.

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