Hutley v Cosco (No 2)

Case [2021] NSWCA 335

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Hutley v Cosco (No 2) [2021] NSWCA 335
Hearing dates: On the papers
Date of orders: 21 December 2021
Decision date: 21 December 2021
Before: Basten JA at [1];
Macfarlan JA at [35];
White JA at [37]
Decision:

(1)   Refuse the application to vary order 2(b) made and entered on 23 February 2021.

(2)   Otherwise dismiss the amended notice of motion dated 6 September 2021, with no order as to costs.

Catchwords:

COSTS – application for indemnity costs – offers of compromise – Calderbank offers – scope of Defamation Act 2005 (NSW) s 40 – whether offers were reasonable when made – whether non-acceptance reasonable – whether offers genuine offers of compromise – offers made no provision for existing legal costs – application dismissed

COSTS – claim for interest – claim for interest to be back-dated to date costs paid – scope of Civil Procedure Act 2005 (NSW), s 101(5) – whether

variation of existing costs order – application of UCPR r 36.16(3A) – if applicable, variation sought out of time – whether order should be made

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 98, 99, 100, 101

Courts and Justice Portfolio Legislation Amendment Act 2015 (NSW), Sch 1 cl 2

Defamation Act 2005 (NSW), s 40

Supreme Court Act 1970 (NSW), s 46

Uniform Civil Procedure Rules 2005 (NSW), r 36.7, 36.15, 36.16

Cases Cited:

Bailey v Marinoff (1971) 125 CLR 529

Bullock v London General Omnibus Co [1907] 1 KB 264

Calderbank v Calderbank [1975] 3 All ER 333

Cornes v The Ten Group Pty Ltd (No 2) [2012] SASCFC 106

Cosco v Hutley [2021] HCASL 153

Cotie v Cox [2006] NSWSC 859

Drummond and Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331

Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370

Grace v Grace (No 9) [2014] NSWSC 1239

Gray v Richards (No 4) [2017] NSWSC 1714

Hutley v Cosco [2021] NSWCA 17

Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) (2013) 84 NSWLR 436; [2013] NSWCA 211

Lahoud v Lahoud [2006] NSWSC 126

Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140

Rodi v Gelonesi [2016] NSWCA 348

Short v Crawley (No 45) [2013] NSWSC 1541

Spedding v Nobles; Spedding v McNally (No 2) [2007] NSWCA 87

Tjiong v Tjiong (No 2) [2018] NSWSC 1981

Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2013] NSWCA 227

Category:Costs
Parties: Vanessa Hutley (Appellant)
Anthony Cosco (Respondent)
Representation:

Counsel:
M Richardson (Appellant)
S T Chrysanthou SC / N G Olson (Respondent)

Solicitors:
Harris & Company (Appellant)
D’Arcy Sloman Peacock (Respondent)
File Number(s): 2020/226530
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law Division
Citation:

[2020] NSWSC 893

Date of Decision:
13 July 2020
Before:
Rothman J
File Number(s):
2016/332100A

Judgment

  1. BASTEN JA: The respondent, Anthony Cosco, was successful in the…

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AGLC
Hutley v Cosco (No 2) [2021] NSWCA 335
Case
[2021] NSWCA 335
Decision Date

CaseChat Overview and Summary

In *Hutley v Cosco (No 2)*, the New South Wales Court of Appeal considered applications by the plaintiff for indemnity costs and for variation of an existing costs order. The plaintiff sought indemnity costs on the basis of two *Calderbank* offers made during the proceedings, arguing that these offers were reasonable when made and that the defendant's non-acceptance was unreasonable. The plaintiff also sought to vary a previous costs order to include interest back-dated to the date costs were paid, pursuant to section 101(5) of the *Civil Procedure Act 2005* (NSW) and rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

The primary legal issues before the Court of Appeal were whether the plaintiff's *Calderbank* offers constituted genuine offers of compromise that were reasonable when made, and whether the defendant's refusal to accept them was unreasonable, thereby justifying an award of indemnity costs. Additionally, the Court had to determine whether it had the power to vary the existing costs order to include interest, and if so, whether the application was made within the relevant time limits and whether such a variation should be granted. The Court also considered the scope of section 40 of the *Defamation Act 2005* (NSW) in relation to the reasonableness of the offers.

The Court of Appeal found that the *Calderbank* offers were not genuine offers of compromise because they made no provision for the plaintiff's existing legal costs. Consequently, the offers were not considered reasonable when made, and the plaintiff's application for indemnity costs was dismissed. Regarding the application to vary the costs order, the Court determined that it lacked the power to make the requested variation, or alternatively, that the application was out of time.

Accordingly, the Court of Appeal refused the application to vary the order made on 23 February 2021. The amended notice of motion dated 6 September 2021 was otherwise dismissed, with no order as to costs.

Orders

Orders of the court

(1) Refuse the application to vary order 2(b) made and entered on 23 February 2021.

(2) Otherwise dismiss the amended notice of motion dated 6 September 2021, with no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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