Gray v Hobson (No 2)

[2018] NSWCA 131

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gray v Hobson (No 2) [2018] NSWCA 131

Hearing dates:

On the papers

Decision date:

18 June 2018

Before:

Basten JA; Macfarlan JA; Simpson AJA

Decision:

(1)   In lieu of order (5) made on 1 March 2018:

 

(a)   Order that Mr Hobson pay Dr Gray’s costs of the trial up to and including 1 November 2016 on the ordinary basis.
(b)   Order that Mr Hobson pay Dr Gray’s costs of the trial from 2 November 2016 on the indemnity basis.
(c)   Otherwise dismiss Dr Gray’s notice of motion filed 15 March 2018.

 (2)   Dismiss Mr Hobson’s notice of motion filed 15 March 2018 with costs.

Catchwords:

APPEAL – costs of appeal – offer of compromise at trial – offer not renewed

 

APPEAL – costs of appeal – appellant successful on particular issues – judgment below set aside – whether costs to be apportioned by issue

 

COSTS – interest on costs – application to vary default position under statute – whether adequate reasons for ordering interest

  COSTS – offer of compromise – offer prior to trial – whether period offer open for acceptance was “reasonable in the circumstances”

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.16, 42.14

Cases Cited:

Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Leda v Weerden (No 3) [2006] NSWSC 220
McKeith v Royal Bank of Scotland Group PLC (No 2) [2016] NSWCA 260
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (No 2) (2014) 88 NSWLR 471; [2014] NSWIC 3
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
South West Helicopters Pty Ltd v Stephenson (No 2) [2018] NSWCA 99

Category:

Costs

Parties:

Dr Randolph Gray (Appellant)
Brendan Hobson (Respondent)

Representation:

Counsel:
S Woods (Appellant)
R de Meyrick (Respondent)

  Solicitors:
Norton Rose Fulbright Australia (Appellant)
Grieve Watson Kelly (Respondent)

File Number(s):

CA 2017/168320

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 589

Date of Decision:

17 May 2017

Before:

Harrison J

File Number(s):

SC 2013/80267

Judgment

1. THE COURT: Judgment on this appeal was delivered on 1 March 2018: Sparks v Hobson; Gray v Hobson [2018] NSWCA 29. It allowed Dr Gray’s appeal and ordered the entry of judgment in his favour. Mr Hobson was ordered to pay Dr Gray’s costs of the proceedings at first instance and on appeal.

2. Both parties applied by notice of motion filed within the 14 day period specified in r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for variation of the costs orders. It is convenient to deal with that of Dr Gray first.

Whether costs of trial should be payable on the indemnity basis

3. Dr Gray seeks an order that the costs of the proceedings at first instance be payable on the ordinary basis up…