Hunter v Roberts (No 2)

[2019] NSWCA 235

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hunter v Roberts (No 2) [2019] NSWCA 235

Hearing dates:

On the papers

Decision date:

24 September 2019

Before:

Meagher JA at [1];
Brereton JA at [1];
Simpson AJA at [1].

Decision:

1. Vary order 9 made on 20 May 2019 to read as follows:

 

9. Order that the respondent pay the applicant’s costs of the appeal on the ordinary basis up to and including 24 December 2018, and thereafter, on an indemnity basis.

2. The respondent pay the applicant’s costs of this motion.

Catchwords:

COSTS – application for indemnity costs following rejection of Calderbank offer – where offer accompanied by written submissions in the appeal –where applicant’s prospects of success very good – whether respondent acted unreasonably in refusing offer

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 3
Legal Profession Uniform Law Application Act 2014 (NSW), Pt 7, Div 3
Motor Accidents Compensation Act 1999 (NSW), s 73
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1, 42.2

Cases Cited:

Calderbank v Calderbank [1976] Fam 93
Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322
Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127
Leichhardt Municipal Council v Green [2004] NSWCA 341
Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323

Category:

Costs

Parties:

Kelly Hunter (applicant)
Jonathon Roberts (respondent)

Representation:

Counsel:
A Casselden SC / J Malouf (applicant)
I D Roberts SC (respondent)

  Solicitors:
Gerard Malouf & Partners (applicant)
Sparke Helmore Lawyers (respondent)

File Number(s):

2018/242181

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

23 March 2018

Before:

Wass SC DCJ

File Number(s):

2016/91722

Judgment

1. THE COURT: The Court’s judgment of 20 May 2019 allowed the applicant’s appeal from an order of the District Court dismissing, on the ground of delay, her statement of claim in which she sought damages for personal injury suffered in a motor accident (Motor Accidents Compensation Act 1999 (NSW), s 73(5)). In doing so, the Court made the following orders as to costs:

8. Order that the respondent pay the applicant’s costs of [the motion in the District Court].

9. Order that the respondent pay the applicant’s costs of the appeal.

2. By her notice of motion of 23 May 2019 the applicant seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(1) that order 9 above be varied as follows:

9. Order that the respondent pay the applicant’s costs of the appeal:

i.    on an ordinary basis up until and including 24 December 2018; and

ii.    thereafter, on an indemnity basis.

3. That application was brought within the 14 days provided by sub-rule (3A), enlivening this Court’s power under r 36.16(1) to vary the earlier costs order.

4. In support of the proposed variation, the applicant relies on an informal “Calderbank” offer (from Calderbank v Calderbank [1976]…