Kramer v Stone (No 2)

[2023] NSWCA 298

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kramer v Stone (No 2) [2023] NSWCA 298

Hearing dates:

On the papers

Date of orders:

11 December 2023

Decision date:

11 December 2023

Before:

Ward P; Leeming JA; Kirk JA

Decision:

1.   The application for a special costs order is dismissed, with no order as to the costs of that application.

Catchwords:

COSTS – party/party – appeals – where offer made before appeal hearing – whether the offer reflected genuine compromise – whether unreasonable for appellants not to accept the offer

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 42.15A

Cases Cited:

Abdi v Abdi (No 2) [2022] NSWSC 582

DSHE Holdings (Receivers & Managers appointed) (in liq) v Nicholas Abboud (No 4); National Australia Bank Ltd v Nicholas Abboud (No 5) [2022] NSWSC 91

Kramer v Stone [2023] NSWCA 270

Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Leichhardt Municipal Council v Green [2004] NSWCA 341

Port Kembla Coal Terminal Ltd v Construction Forestry Mining and Energy Union (New South Wales Branch) (No 2) (2014) 88 NSWLR 471; [2014] NSWIC 3

Taheri v Vitek (No 2) [2014] NSWCA 344

Category:

Costs

Parties:

Hilary Lorraine Kramer (First Appellant)
Jaime Ferrer (Second Appellant)
David Lindsay Stone (Respondent)

Representation:

Counsel:
R Wilson SC with M McGirr (Appellants)
L Ellison SC with H Bennett (Respondent)

Solicitors:
Walker & White (Appellants)
Lane Associates (Respondent)

File Number(s):

2023/84277

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2021] NSWSC 1456

Date of Decision:

16 February 2023

Before:

Robb J

File Number(s):

2017/00261027

Judgment

1. THE COURT: On 10 November 2023, this Court delivered judgment dismissing a notice of motion filed on 24 July 2023 by the appellants for leave, if leave be necessary, to adduce additional evidence and dismissing, with costs, the appeal itself (Kramer v Stone [2023] NSWCA 270 (the principal judgment)).

2. The dispute between the parties concerned the ownership of a farming property at Upper Colo, New South Wales. The outcome of the proceedings was that an order was made that the said property was held on constructive trust for the respondent. That outcome was not disturbed on appeal. What now falls to be determined is an application by the respondent for a special costs order (costs on an indemnity basis on and after 3 August 2023) having regard to an offer made to compromise the appeal proceedings, which was rejected by the appellants. The application, which has been dealt with on the papers, is dismissed for the following reasons. In what follows, which assumes familiarity with the principal judgment, we adopt the definitions used in the principal judgment.

Offer

3. The special costs order is sought having regard to the non-acceptance by the appellants of an offer made by the respondent to settle the appeal by way of a formal offer of compromise served on 2 August 2023. The notice of appeal had been…