Koundouris v The Owners - Units Plan No 1917 (No 2)

The Full Court of the Supreme Court of New South Wales considered an appeal by Mr Koundouris against orders made by a single judge in proceedings brought by The Owners - Units Plan No 1917. The dispute concerned the interpretation and application of an offer of compromise made by Mr Koundouris in the primary proceedings, and its effect on the costs awarded in both the primary proceedings and the subsequent appeal.

The central legal issue before the Full Court was whether the offer of compromise, which was made in the context of the primary proceedings, had any operative effect on the costs of the appeal. The Court was required to determine the proper approach to assessing costs when an offer of compromise is made in earlier proceedings, but the appeal itself involves distinct issues and a different procedural context.

The Court reasoned that an offer of compromise made in primary proceedings, pursuant to the Uniform Civil Procedure Rules 1999 (NSW), generally only applies to the costs of those primary proceedings. Unless the offer expressly or implicitly extends to the costs of an appeal, or is made in a manner that clearly contemplates its application to appellate costs, it will not ordinarily govern the costs of the appeal. The Court emphasised that appeals are distinct proceedings, and the offer must be construed in light of the specific rules and principles governing appellate costs. In this instance, the offer was confined to the costs of the primary proceedings and did not extend to the costs of the appeal.

The Full Court ordered that Mr Koundouris pay the costs of the appeal, and that the costs of the primary proceedings be assessed in accordance with the offer of compromise made by Mr Koundouris.