Howard Smith and Patrick Travel Pty Ltd v Comcare (No 2)

In *Howard Smith and Patrick Travel Pty Ltd v Comcare (No 2)*, the New South Wales Court of Appeal considered an application to vary an earlier costs order. The appellant had been ordered to pay the respondent's costs of an appeal on the ordinary basis. The dispute before the Court of Appeal concerned whether this order should be varied to reflect the operation of the Uniform Civil Procedure Rules 2005 (NSW) concerning offers of compromise.

The central legal issues before the Court of Appeal were whether a valid offer of compromise had been made by the respondent, and if so, whether there were any reasons why the rule mandating assessment of costs on an indemnity basis from the date of a rejected offer of compromise should not apply. The Court was required to interpret and apply rules 42.14 and 51.47 of the Uniform Civil Procedure Rules 2005 (NSW).

The Court reasoned that the respondent had made a valid offer of compromise. Applying the relevant rules, the Court determined that the appellant should be ordered to pay the respondent's costs of the appeal, but with a distinction in the basis of assessment. Costs were to be assessed on the ordinary basis up to and including 3 October 2013, the date of the rejected offer, and thereafter on the indemnity basis. The Court varied its previous order accordingly.