Hungry Jack's Pty Ltd v Fourtounas (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hungry Jack’s Pty Ltd v Fourtounas (No 2) [2021] NSWCA 26

Hearing dates:

On the papers

Decision date:

05 March 2021

Before:

Basten JA; White JA

Decision:

Vary order (2) made on 10 December 2020 requiring the applicant to pay the respondents costs in this Court, so that it now provides:

Order that the applicant pay the respondent’s costs assessed on the ordinary basis up to and including 15 October 2020 and thereafter on an indemnity basis, such costs to include the costs of the motion to vary the earlier order.

Catchwords:

APPEAL – application for leave refused – costs ordered – application to vary order – offer of compromise – indemnity costs sought

COSTS – indemnity costs – offer of compromise – whether offer open for reasonable period – whether offer involved compromise – default entitlement – power to order otherwise – onus on applicant to establish reasons for different costs order – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A, 51.47

Cases Cited:

Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Category:

Costs

Parties:

Hungry Jack’s Pty Ltd (Applicant)
Sylvia Fourtounas (Respondent)

Representation:

Counsel:
Mr D A Lloyd SC (Applicant)
Mr E P Anderson (Respondent)

Solicitors:
Gillis Delaney Lawyers (Applicant)
Gerard Malouf & Partners (Respondent)

File Number(s):

2020/177378

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

29 May 2020

Before:

Norton SC DCJ

File Number(s):

2019/46773

Judgment

1. THE COURT: On 10 December 2020 the Court dismissed an application by Hungry Jack’s Pty Ltd (the applicant) for leave to appeal from a judgment in favour of the respondent, Sylvia Fourtounas, in the District Court. This Court directed that the applicant pay the respondent’s costs of the application for leave to appeal. [1]

   1. Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325.

2. Ms Fourtounas has sought to vary the costs order. The application by notice of motion was filed within the time permitted, namely within 14 days from the date of entry of the orders. She seeks the following orders:

1. the applicant to pay the respondent’s costs on the ordinary basis up to and including 15 October 2020, and thereafter on an indemnity basis from 16 October 2020;

2. the applicant to pay the respondent’s costs of and incidental to this notice of motion on an indemnity basis.

3. On 15 October 2020 the respondent’s solicitors served an offer of compromise which sought that the summons seeking leave to appeal be dismissed with no order as to costs. The offer remained open for a period of 14 days. It was not accepted. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.15A, where the defendant (respondent) makes an offer which is not accepted by the plaintiff (applicant) and the defendant obtains a judgment no less favourable than the terms of the offer, the normal rule…