Gold and Copper Resources Pty Limited v The Hon Chris Hartcher, Minister for Resources and Energy, Special Minister (No 2)

Gold and Copper Resources Pty Limited (the appellant) sought to vary an earlier costs order made by the Court of Appeal of New South Wales in proceedings against The Hon Chris Hartcher, Minister for Resources and Energy, Special Minister (the respondents). The dispute concerned the appropriate basis for awarding costs following an appeal.

The central legal issue before the Court of Appeal was whether it had the power to vary its own costs order pursuant to rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) and, if so, whether it should exercise that power to alter the basis of costs from ordinary to indemnity from a specified date. This question arose in the context of an offer of compromise made by the appellant.

The Court determined that rule 36.16(3A) permitted it to vary its own orders in circumstances where it was just to do so, and that the making of an offer of compromise was a relevant factor in considering whether to vary a costs order. Applying rule 42.15A, which provides for indemnity costs where an offer of compromise is not accepted and the ultimate outcome is less favourable to the offeror, the Court found that the appellant's offer of compromise had not been accepted and that the outcome of the appeal was less favourable to the appellant than its offer. Consequently, the Court considered it just to vary the costs order.

The Court ordered that the previous costs order be vacated and substituted with an order that the appellant pay the respondents’ costs of the appeal on an ordinary basis up to and including 20 January 2015, and on an indemnity basis as and from 21 January 2015.